You’ve lived together for six months with your romantic partner, so now you’re automatically considered a “de facto” spouse, right? Wrong. This is one of the typical myths people have about de facto relationships and how the law treats them. But in fact when it comes to rights regarding property settlements and maintenance, it’s important to be aware of what the jurisdictional requirements are in relation to de facto relationships.
A de facto relationship is defined in section 4AA the Family Law Act 1975 to mean two people (of any sex) who are in a relationship as a couple living together on a genuine domestic basis. To decide whether a couple fits the bill, the court assesses the relationship according to four ‘gateway criteria’:
That the period of the de facto relationship was at least 2 years;
That there is a child of the de facto relationship;
That the relationship is or was registered under a prescribed law of a State or Territory.
That significant contributions were made or being made by one party and the failure to make an order would result in a serious injustice.
If you meet any of these requirements, then you have jurisdiction under the Family Law Act 1975 to seek a property settlement or spousal maintenance from your ex. The principles that then apply as to what you kind of property settlement you might be entitled to are similar to that of a married couple.
It’s important to note the time limits that apply in family law for de factos. De facto partners need to apply for financial orders in a property settlement within two years of separation, otherwise need to seek leave (permission) from the court.
De facto relationship
Proving the existence of a romantic relationship involves considering a wide range of factors including:
- duration of a relationship;
- nature and extent of common residence;
- whether there was a sexual relationship;
- how much financial dependence or interdependence there was;
- whether there was any arrangement relating to one party financially supporting the other;
- ownership, use and acquisition of property;
- how much mutual commitment there was to a shared life;
- care and support of children;
- performance of household duties; and
- reputation and public aspects of the relationship.
All of these factors are considered holistically, with none of them singly being ‘proof’ of a de facto relationship.
Note that monogamy is not a sufficient indicator that a couple was in a de facto relationship. In one case, a same sex partner tried to argue his “open” relationship was simply a “friends with benefits” situation, but the court disagreed, finding there were sufficient features of a genuine domestic relationship for the couple to be classified as de facto despite it not being monogamous.
Cohabitation
It is not required that parties share the same residence all of the time to be found to be in a de facto relationship. The concept of a de facto relationship under the Family Law Act 1975 relates more to the nature of the relationship and how much the two parties’ lives have “merged”, and not specific quantities of time spent together.
In another case in the family courts, the court ruled that a man and woman who lived together for 13 years after buying a home together and having a child, were not actually in a de facto relationship and that they had had sex out of ‘need’, not love. This meant the court had no jurisdiction to divide up their property under family law. The man had disputed the fact he’d been in a de facto relationship by arguing he had lived together with his partner and their daughter for convenience. He had kept a separate bedroom and kept his own lifestyle largely separate from the woman. The court agreed, with the judge somewhat controversially saying, “A de facto relationship may be described as ‘marriage like’ but it is not a marriage and has significant differences socially, financially and emotionally”. This view accords with the common idea that people don’t get married for a reason, namely the economic consequences of marrying.
The burden of proof
Whereas proving you are legally married is usually simple, proving you are de facto means the courts have to determine if a de facto relationship exists by looking at the facts and evidence.
Determining whether or not people are in a genuine de facto relationship means the courts take a close forensic look at a lot of elements of the couple’s lives using evidence as an objective witness. What the courts have shown is the critical importance of having detailed affidavit evidence containing objective data.
Such data may include bank records, telephone records, medical records or even photos at family functions, evidence which can allow a court to draw conclusions about the relationship. This evidence can be telling in how parties split their time between properties, where they were on given days, how frequent their communication was, or how the relationship was described to outsiders.
An estate dispute involving intestacy was recently heard in the Supreme Court of NSW, where a de facto partner had been in a ‘secret’ relationship with the deceased. In that case, it can be seen how important the role of such objective evidence is, with the de facto partner able to convince the court of the relationship using medical records which indicated how the relationship was described, including listing each other as emergency contacts. The observations of other witnesses of displays of affection between the couple was also taken into account.
The credibility of each party of course is also critical.
If your de facto relationship has ended, there may be many issues to consider, from updating wills and changing binding death notifications with superannuation funds, working out parenting arrangements, applying for spousal maintenance and/or child support, dividing assets, transferring real estate, and so on. It’s important to obtain legal advice in relation to what you need to do—call us for a free first conference and we can steer you in the right direction.
If you need assistance with assessing whether your de facto relationship meets the requirements under the Family Law Act to begin legal proceedings, or if you need help with any other family law matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.
Please note our blogs ae not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.
