Now, I’m going to get all cliché and allegorical on you – and I’m not…
For many couples, marriage is no longer the be-all-end-all.
Some couples have been dating for a while. They socialise as a couple, have met each other’s family and live out of each other’s homes. They might even be thinking about moving in, opening joint bank accounts, contributing to joint expenses, buying property and having children.
But when does a relationship become legal? It’s not always an easy answer, which is why it’s important for you to understand what a ‘de facto relationship’ means. Under Australian family property law, de facto couples are treated generally the same way as married couples when it comes to property settlements and binding financial agreements.
What is a ‘de facto relationship’ in the eyes of the law?
The technical definition under the Family Law Act 1975 is ‘a couple living together on a genuine domestic basis’. But how do the Courts determine a “genuine domestic basis”?
How do I know if I am in a de facto relationship?
Lawyers and judges look at many factors and no one factor is more important than another. Indeed, none of these factors have to be present.
Each factor has a different weight depending on the relationship.
- Duration: If you’re in a relationship and have lived with each other for at least two years, this is sufficient for the Court to make Orders under the Family Law Act about property matters.
- Living together: If you both live together, it’s more likely you’re in a de facto relationship. This includes owning or sharing property and sharing household tasks and chores.
- Existence of a sexual relationship: If you’re having, or at some stage have had, a sexual relationship with the person you’re living with, the Court can deem you to be in a de facto relationship.
- Financial interdependence and financial support: If you depend on one another for financial support and share the costs of groceries, mortgage repayments or rent and bills, then the Court could determine you’re in a de facto relationship. The same applies if you share bank accounts.
- Ownership, use and acquisition of property: If you jointly own, use and/or buy property together such as a house, car or furniture and effects, the Court is more likely to find you’re in a de facto relationship.
- Care and support of children: If you share the care and support of children—yours, your partner’s or children you’ve had together—then you’re more likely in a de facto relationship.
- Reputation and public aspects of the relationship: If your friends and acquaintances believe you and your partner behave like a married couple in your social and public life, then chances are the Court will determine you’re in a de facto relationship.
- Registration of your relationship: In the ACT you can, as a couple, register your relationship as a Civil Union (under the Civil Unions Act 2012). Registration indicates that you intended to create a marriage-like relationship and is, in turn, an indicator that you’re in a de facto relationship.
What are the consequences of my relationship being a de facto relationship?
If you’re in a de facto relationship, there will be property and financial consequences arising on the breakdown of your relationship under the Family Law Act. Basically the same law on property settlements and spousal maintenance which applies to married couples, applies to de facto couples.
What if I separate?
If you separate from your de facto partner, you have up to two years to apply for a property settlement or file Consent Orders formalising your property settlement. You should always get legal advice on your rights, entitlements and obligations if your relationship breaks down.