De Facto

In today’s society, it’s common for many couples to live together without tying the knot so how do you define these relationships in a legal sense?
You are considered to be in a de facto relationship with someone if three criteria set out by the Family Law Act 1975 (Cth) are satisfied:
1. You and that person are not legally married to each other; and
2. You and that person are not related by family; and
3. Having regard to all the circumstances of your relationship, it is considered you been living together in a genuine domestic basis.

Establishing the first two criteria is straightforward however the third criteria have a layer of complexity. Fortunately, the Family Law Act provides a detailed, non-exhaustive list of circumstances a Court may have regard to when reaching a decision. These include, but are not limited to:
a. The duration of the relationship;
b. The nature and extent of their common residence;
c. Whether a sexual relationship exists;
d. The degree of financial dependence or interdependence, and any arrangements for financial support, between them;
e. The ownership, use and acquisition of their property;
f. The degree of mutual commitment to a shared life;
g. Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
h. The care and support of children; and
i. The reputation and public aspects of the relationship.

The court has a wide discretion to give weight to whichever circumstances it thinks more relevant in making a determination as to whether a relationship exists. Further, the finding of any of the above is not strictly conclusive of a de facto relationship as your entire relationship is considered, including any other matters the court deems appropriate in individual cases.
In addition, you need to demonstrate you have lived together for a period of at least two years, except where:
– There is a child or children of the relationship; or
– One party to the relationship has made substantial contributions to the relationship both financial and non-financial; or
– The relationship was registered under a prescribed law of a State or Territory.

The Family Court of Australia and the Federal Circuit Court of Australia are able to determine parenting and property settlement issues for de facto couples in the same way as for married couples.

An application for maintenance or property adjustment must be made within two years of the date of separation. This may be extended if the court is satisfied that:
– Hardship would be caused to either of the parties or a child if leave is not granted
– In respect to an order for maintenance, the party’s circumstances were such, at the time, that they would have been unable to support themselves without some pension, allowance or benefit.

The Family Law Team at McLachlan Thorpe Partners can advise on steps to take before or during a de facto relationship to prevent future arguments in the event the relationship breaks down.
We also assist parties following the breakdown of a de facto relationship in negotiating a property settlement, making proper arrangements for the children of the relationship and representing parties in the Family Court if necessary. If you are unsure whether you are in a de facto relationship or have recently separated from your partners and would like advice in relation to your entitlements, please do not hesitate to contact our Family Law Team.

From 23 November 2023, the legal practice of Church & Grace will be incorporated as part of McLachlan Thorpe Partners. Both Church & Grace and McLachlan Thorpe Partners are committed to ensuring a smooth transition and maintaining the high standards of service and relationship you have come to expect from both firms. Click here for more information.