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The Law and You: Am I in a de facto relationship?

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We live in a world where many forms of ‘family’ exist, including de facto relationships. When love strikes it’s easy to be blissfully unaware of the facts involved.

Watts McCray advises you to take time to understand what ‘de facto relationship’ means. This is because under Australian family property law, de facto couples are treated generally the same way as married couples.

How do I know if I am in a de facto relationship?

The technical definition is a ‘couple living together on a genuine domestic basis’. No hard and fast rules determines this, but the Family Law Courts use nine factors to help determine if your relationship is de facto or more a ‘boyfriend and girlfriend’ or a ‘just sex’ relationship.

What factors does the Court use to determine if I’m in a de facto relationship?

The Court understands that every relationship is different. Judges therefore have a broad view of de facto relationship and consider the nine factors to determine if you’re in one.

The law is discretionary. No one factor is more important than another or has to be present. Judges assign a different weight to each depending on the nature of your relationship.

  1. Duration: If you’re in such a relationship for at least two years, this is sufficient for the Court to make orders under the Family Law Act about property matters.
  2. Common residence: If you live in the same household, then you’re more likely to be in a de facto relationship. This includes sharing the use and ownership of property, household tasks and chores.
  3. 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.
  4. Financial dependence or interdependence, and financial support:If, as a couple, you depend on one another for financial support and pay for shared requirements with joint money—such as buying groceries, paying the mortgage and paying bills. Sharing bank accounts is another important indicator.
  5. Ownership, use and acquisition of property: If you jointly own, use and/or buy property together such as a house, sharing a car you both own and/or buying household furniture together.
  6. Registered relationships: In the ACT, you can, as a couple, register your relationship as a Civil Union (under the Civil Unions Act 2012). If registered this indicates you intend to create a marriage-like relationship. This, in turn, is an indicator that you’re in a de facto relationship.
  7. Care and support of children: If you share the care and support of children—yours, your partner’s or children you have had together
  8. 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.

Does the Family Law Act apply to de facto couples regardless of when I separated?

No. It only applies to de facto couples who separated after 1 March 2009.

Is there a time limit on when I need to file Consent Orders or commence property proceedings in the Court once I separate?

Yes. The legislation requires that parties that were in a de facto relationship finalise or commence litigation within two years of separating. All is not lost if you do not meet this deadline, it just makes things more difficult and more costly because of extra steps required.

Want expert advice on any aspect of separation?

Watts McCray is a leading firm of family lawyers and divorce professionals with years of experience. If you need help with separation, divorce, child support, child custody, property and financial services, call us on 02 6257 6347.

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3 Responses to The Law and You: Am I in a de facto relationship?

Christina says: 21 April, 2014 at 5:38 pm

My husband leaving completely blind-sided me. I needed advice. I needed something to make sense of the world I was suddenly plunged into. Watts McCray was recommended to me by a legal-eagle friend of my sister.
From the outset, to the conclusion of my “matter”, they have been the epitome of compassion, professionalism and sound legal and practical common sense. I would not hesitate to recommend this firm to anyone trying to navigate the bewildering waters of separation and divorce. Just when your world is falling apart, these people are a rock you can swim to. They guided me well and I thank them for their wisdom. they are not a firm who will overcharge you or advise you on an expensive fee-raising course of action. They know what they are doing, and they are kind to you while you are hurting.

Jane says: 28 April, 2014 at 4:54 pm

Do pre-nuptial agreements apply to defacto couples? If not is there some other way to protect yourself financially before getting into a de facto relationship not just from having to split up joint assets but so that you don’t loose assests that where yours before your got together or get stuck paying off their old debts? What about if you start living together as flatmates or out of convenience and then the relationship becomes something more serious. Can you do something at that point or is it too late?

Alanna says: 28 April, 2014 at 5:02 pm

Hi Jane

Thank you for your post.

Financial Agreements (or pre-nuptial agreements) can be entered into by couples who are about to enter into or are already in a marriage or de facto relationship.

As each matter is different I strongly recommend seeking legal advice from a specialist family lawyer. If you would like to organise an appointment with one of our lawyers, please give me a call on 02 6257 6347.

Many thanks,
Alanna Davis
Practice Manager
Watts McCray Canberra

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