The definition of a ‘de facto relationship’ is set out in the Family Law Act (‘the Act’).
There are a clearly defined set of rules as to what constitutes a de facto relationship. The Act states that you and your partner will be considered to be in a de facto relationship if you are:
- not legally married to each other;
- not related by family; and
- have a relationship ‘as a couple living together on a genuine domestic basis’.
The wording in this last point is quite important. Below, we break down what the Act considers to mean by the terms ‘living together’ and ‘genuine domestic basis’.
There is a common misconception that if you’ve lived with your partner on a full-time basis for a certain period of time, you will automatically be in a de facto relationship. This is not necessarily the case.
The concept of ‘living together’ under the Act assesses each relationship on a case-by-case basis. The concept does not set any specific time frame for which a couple would need to live together before determining a de facto relationship.
“Genuine domestic basis”
To determine whether or not you are living together on a ‘genuine domestic basis’, the Act sets out a wide variety of circumstances to consider. These include (but are not limited to) aspects such as the length of relationship, if there was a sexual relationship, mutual commitment in the relationship, public aspects of the relationship, ownership, use and acquisition of their property and financial dependence, and interdependence of the parties.
A de facto relationship can exist between two people of the same sex or even if one or both of the persons are legally married to someone else or in another de facto relationship at the same time.
Even if you are found to be in a de facto relationship, a Court may not necessarily make an Order for the division of relationship assets if your relationship irretrievably breaks down. A Court will only make an Order if:
- the total period of the relationship is at least two years; or
- there is a child of the de facto relationship; or
- if the person applying for the order has made substantial contributions to the relationship and there would be a serious injustice to the applicant if an order is not made.
You’ll note that the Act refers to the total period of a relationship, so this time could potentially be made up of a number of on/off relationships with the same person forming an aggregate total of two years, rather than needing to be in a continuous relationship.
Clearly, the scope of whether or not you are in a de facto relationship is quite broad and there are a number of factors to consider.
Being in a de facto relationship will create rights and responsibilities for you and for your partner, in life and following death, and it is important to understand your situation and plan accordingly.
If you are unsure whether you are in a de facto relationship or not, it is best to seek advice from an experienced family lawyer who will be able to speak with you about your individual circumstances.