There are many fallacies surrounding de facto relationships and what actually constitutes a de facto relationship in the eyes of the law. One of the most common misconceptions is that you are only in a de facto relationship if you live with your partner on a full-time basis. This is not always the case. Even if you do not live under the same roof as your partner, you could still be considered as a de facto couple.
When the Court is asked to determine the status of a relationship, a person is deemed to be in a de facto relationship with another person if:-
- the persons are not legally married to each other;
- 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 (Family Law Act 1975, section 4AA(1)).
In order to involve the Court’s jurisdiction, you would need to demonstrate that you have lived together for a period no less than two years. This is irrelevant however if there is a child (or children) of the relationship.
With regard to determining whether you are living together on a genuine domestic basis, the Family Law Act directs the Court to consider:-
- the duration of the relationship;
- the nature and extent of common residence;
- whether a sexual relationship exists;
- the degree of financial dependence or interdependence and arrangements for financial support;
- the ownership, use and acquisition of property;
- the degree of mutual commitment to a shared life;
- whether the relationship is or was registered under a prescribed law of a State/Territory;
- arrangements for the care and support of children; and
- the reputation and public aspects of the relationship.
From the above list neither factor is more important than the other but the more factors that exist increase the likelihood of the Court determining that a de facto relationship exists.
Contrary to popular belief, the Family Law Act also recognises the fact that a person could be in multiple de facto relationships, and is possible that a person who is married could still be a party to de facto property proceedings.
What this could mean for you?
You might find yourself in a de facto relationship without knowing it, which could mean that your assets are at risk. If you are unclear as to whether a Court would consider you a de facto, you should consult a Lawyer. If you are in a de facto relationship, you may wish to consider entering into a Financial Agreement (or better known as a prenuptial agreement) to ensure your assets are protected if you separate.
For more information on de facto relationships, or other family law matters, please contact our office for a free initial consultation.