Are we just dating or are we in a de facto relationship?

The Family Law Act provides creates rights in relation to property matters for married couples and de facto couples upon the breakdown of their relationship. It’s easy to know if you are married, but how do you know if you are in a de facto relationship for the purposes of the Family Law Act?

The Family Law Act provides a good starting point to determine whether a relationship is a de facto relationship. S 4AA explores the question of what is a “genuine domestic basis” and provides a list of factors the Court may take into consideration when making this determination. These factors include:

  • How long the relationship lasted
  • If you lived together (this can include between two houses)
  • If there is a sexual relationship
  • The degree of financial interdependence
  • The ownership, use or acquisition of property
  • Mutual commitment to shared live
  • Care and support for children; and
  • The public aspects of the relationship.

This is a broad range of considerations.

Unlike in marriages, even if we can determine there is a “genuine domestic basis”, we will still need to consider if the relationship meets the statutory criteria for the Court to make an order to alter property interests or make an order for spousal maintenance.

When can the Court make an order in de facto relationships?

Proceedings can be commenced in Court provided the statutory threshold is satisfied which means one of the following must exist:

  1. the total length of the relationship is at least 2 years;
  2. there is a child of the de facto relationship;
  3. if you are seeking alteration of property interests, you have made substantial contributions (as outlined in the Act) and failure to make an order would result in injustice;
  4. the relationship was registered under State or Territory law.

Three of the above considerations are clear cut and the consideration by the Court in relation to those factors is clear – if the relationship is less than two years, if there is no child, or if the relationship is not registered under state or territory law, the Court will not involve itself in the property settlement.

The third option, namely where there has been (a) substantial contribution and (b) a failure to make an order would result in serious injustice is less clear. If both of these two factors are satisfied, the Court may nonetheless make orders even if the relationship is less than 2 years, there are no children and the relationship was not one which was registered pursuant to the State and Territory laws.

So how do we satisfy these factors?

The factors considered by the Court to determine whether a party has made substantial contributions to the relationship mirror the contributions considered in a marriage. These contributions may be financial or non-financial in nature, and direct or indirect. This includes payments towards any assets regardless of who’s name the property is registered in (direct financial), gifts or payments by parents or friends (indirect financial), renovating the property (direct non-financial), or looking after the children full time so the other parent can work (indirect non-financial).

The Court will also take into account contributions to the welfare of the family. These are broad considerations, including cooking, cleaning, gardening and caring for the family.

In short, you would need to demonstrate significant intermingling of finances and use the above-mentioned contributions to show a genuine domestic basis for the relationship.

You would not be required to rely on this threshold requirement if your relationship were longer than 2 years or if there were children of the de facto relationship Unlike when the Court is considering these factors to determine if there should be a property adjustment, in this scenario, the Court is assessing whether the threshold issue of if the contributions were significant to the extent that they are able to make an order in the first place. This should be considered a high bar to reach in circumstances where there is a further requirement that not making an order would lead to an injustice.

The Court is the final arbiter on whether a de facto relationship exists or not but helpfully there are cases on this very point which we can reference to provide you with advice in relation to your specific circumstances.

It can sometime be difficult to determine if your relationship is a de facto relationship within the ambit of the Family Law Act.  It is always best to get advice on your relationship and what options are available to you if you are in a relationship and even if you are not contemplating the end of the relationship as you and your partner can enter into a Financial Agreement which will determine who gets what if the relationship breaks down.  Please contact Caroline Counsel Family Lawyers for advice on the specific circumstances of your relationship.

The information in this blog does not constitute legal advice and cannot be relied upon by you. If you require advice specific to your situation you must contact Caroline Counsel Family Lawyers. The contents of this blog are relevant as at 21 October 2022. We recommend you obtain specific advice relevant to you and your family’s situation.

Nguyet Cao, Lawyer and Caroline Counsel, Principal.

If you would like advice from a family lawyer in relation to this issue, you can contact Caroline Counsel Family Lawyers on 03 9320 3900 or [email protected] to arrange an appointment.

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