We are asked by our clients whether the relationship they have with their partner is a de facto relationship. Sometimes a party to a relationship may think that they are only dating or may think of themselves in a casual relationship. It is important to be aware of the factors the Court considers when determining whether a de facto relationship exists and the consequences of the Court making such determination.
The Family Law Act defines a de facto relationship as one which involves two people, who are not married, not related to each other, and having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis. This includes same sex couples.
The Court will consider the following circumstances when determining if two people are in a de facto relationship:-
- 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 arrangement for financial support, between them;
- the ownership, use and acquisition of property;
- the degree of mutual commitment to a shared life;
- whether the relationship was registered;
- the care and support of any children; and
- the reputation and public aspects of the relationship.
The Court does not need to be satisfied of all of the above criteria to make a finding that a de facto relationship exists.
The Court has the power to make Orders relating to property and the payment of maintenance in de facto matters where the Court is satisfied that:-
The total period of the relationship is at least 2 years; or
- There is a child of the de facto relationship; or
- Where at least one of the parties to the de facto relationship has made significant financial or non financial contributions during the relationship and the failure of the Court to make an order would result in a serious injustice to the party applying to the court; or
- Where the relationship is or was registered under a prescribed law of a State or Territory.
The implication of finding yourself being in a de facto relationship can be wide ranging and can be particularly important to a party who may be in a financially superior position than their partner.
If you would like advice as to whether you are in a de facto relationship and/or the ways you may be able to protect your financial interests please contact our office to make an appointment to see one of our experienced family lawyers.