The Family Law Act 1975 (the Act) contains provisions which set out the requirements for a de facto relationship by law. As in all family law matters, each case turns on its own specific facts and each individual’s circumstances. There is not a one size fits all solution and the law is ever evolving as to what constitutes a de facto relationship for the purposes of the Family Law Act. The provisions of the Act apply to both heterosexual and LGBTQI relationships.
The Court has the ability to make a ruling as to:
- The length of a de facto relationship;
- The existence of a de facto relationship; and
- When a de facto relationship ended.
Often, these threshold issues must be dealt with by the Court before a determination can be made in relation to the assets of the parties to the relationship and how a “just and equitable” division of property may be affected in the circumstances.
There are a variety of tests which the Court will use to determine whether a relationship existed between parties, with the key factor being whether parties were together on “a genuine domestic basis.” Section 4AA of the Act defines a de facto relationships. The Act defines a de facto relationship in s4AA (1) as:
A person is in a de facto relationship with another person if:
- The persons are not legally married to each other; and
- The persons are not related by family; and
- Having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
The Act also provides a number of criteria which can be used to determine if a relationship existed between the parties. The Act is clear that no single element will determine a relationship and the Court will give weight and consider the circumstances of each factor in relation to the case before making a determination.
S4AA (2) of the Family Law Act 1975 provides a list of circumstances which the Court will use to work out if persons have a de facto relationship:
- The duration of the relationship;
- The nature and extent of their common residence;
- Whether a sexual relationship exists;
- The degree of financial dependence or interdependence, and any arrangements for financial support, between them;
- The ownership, use and acquisition of their property;
- The degree of mutual commitment to a shared life;
- Whether the relationship is or was registered under a prescribed law of a State or Territory a s prescribed kind of relationship;
- The care and support of children;
- The reputation and public aspects of the relationship.
Section 90SB also notes that the Court may make an order or declaration in relation to a de facto relationship only if the court is satisfied:
- That the period, or the total of the periods, of the de facto relationship is at least 2 years; or
- That there is a child of the de facto relationship; or
- That:
- The party to the de facto relationship who applies for the order or declaration made substantial contributions; and
- A failure to make the order or declaration would result in serious injustice to the applicant; or
- The relationship was registered under a prescribed law of a State or Territory.
These threshold issues are the major distinguishing features between de facto cases and those where a marriage exists. The legislation is clear that even if a de facto relationship fails to meet the 2 year criteria, if substantial contributions have been made during the relationship and a serious injustice will result if the court does not intervene the Court will have the ability to make an order for the division of property. It is also important to note that a person may be legally married to one person and in a de facto relationship with another person.
An example of the Court making a determination in relation to a de facto relationship. In the Case of Betts v Sheriff [2012] FMCAfam 617 FMC AT Brisbane was a case involving two parties who had lived together for a period of 16 years and had a sexual relationship. Mr Betts asserted that the parties were in a de facto relationship for approximately 15 years, whilst Ms Sheriff argued that the parties were in a “no strings attached casual relationship” and lived as housemates. The judge in this matter examined each aspect of the parties’ lives to determine if there was a relationship. The judge found that the parties were not financially dependant on each other, Mr Betts did not provide for Ms Sheriff’s children and Mr Betts was on a benefits from Centrelink and was listed as single. The Judge determined that the parties were not in a genuine de facto relationship and were unable to apply for a property settlement by the Court.
One thing that the case law since the amendments has demonstrated is that not all de facto relationships are the equal to each other. A de facto relationship unlike a marriage, has no defining moment that marks its commencement – there is generally no conscious act that ushers the first day of a union. Most people do not know the day or moment where a pre-marital relationship went from being casual to something more concrete. Even if someone is able to identify the moment, then imagine asking their partner or ex-partner the same question, would they agree?
Caroline Counsel was on Lindy Burns 774 program with Bill O’Shea and Steve Ellen discussing homelessness and the issue of de facto couples who separate. Caroline also discussed parents loaning money to adult children to purchase properties expecting to receive the monies advanced back in due course only to find out the Family Court will consider these a gift not a loan except in certain circumstances.
Written by Sarah Damon, Lawyer
If you would like to know more about de facto relationships and how the law might apply to you please contact our office on 03 9320 3900 for a complimentary 30 minute confidential meeting.
