A person is in a de facto relationship with another person if the persons are not legally married to each other, not related by family and having regard to all of the circumstances of their relationship they have a relationship as a couple living together on a genuine domestic basis.
Unlike married couples, de facto couples do not have a certificate of marriage. In all cases, it depends upon the particular facts involving the particular relationship under scrutiny.
However, it is important that the parties have a relationship as a couple living together on a genuine domestic basis.
The law can have regard to a number of circumstances to work out if persons have a relationship as a couple. These circumstances may include all or any of the following:-
- 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 as a prescribed kind of relationship;
- The care and support of children; and
- The reputation and public aspects of the relationship.
The law says that no particular finding in relation to anyone’s circumstance is to be regarded as necessary in deciding whether or not the persons are in a de facto relationship.
In deciding whether a de facto relationship exists, the law is entitled to have regard to such matters and to attach such weight to any matter that the Court may see appropriate in the particular circumstances of the particular case.
A de facto relationship can exist between two persons of different sexes and also between two persons of the same sex.
A de facto relationship can exist even if one person is legally married to someone else or in another de facto relationship.
In our experience, the following factors are usually given greater weight by the Court in determining whether or not a party is in a de facto relationship or not:-
- The extent to which the parties have shared a common residence and lived together;
- The extent to which the parties have held themselves out as a couple to friends, family and the general public;
- An exclusive intimate relationship; and
- Conducting joint bank accounts and buying property and other items jointly together.
In most relationships, there will be a clean and easy defining act of when the relationship starts. That is usually when parties start living together. The fact that you are going out as boyfriend/girlfriend prior to that does not count as part of the de facto relationship.
Also, in most cases, there will be a clear incident or period where the relationship has come to an end. Only one party need form the intention that the relationship is over for the relationship to be regarded as over by the Court. Usually, that intention is manifested in a party leaving a residence and/or some clear unequivocal communication by one party to the other that the relationship is over and acting on that communication. For example, the parties commencing to sleep in separate bedrooms and live separate lives.
The existence or otherwise of a de facto relationship, its nature and its duration may all be important factors that impact upon a financial property settlement. You should seek specific advice from a Family Law Specialist about the particular circumstances of your de facto relationship and get the right advice early.