In Jonah & White [2011] FamCA 221, “Coupledom” is described as involving “the merger of two lives” that is the core of a de facto relationship and that it is “the nature of the union – the merger of two individual lives into life as a couple – that lies at the heart of the statutory considerations and the non-exhaustive nature of them and, in turn, a finding that there is a de facto relationship” Determining that a relationship is a de facto relationship can open the door to legal remedies and advantages not otherwise available. These include property settlement and maintenance rights under the Family Law Act 1975 (for relationships that terminated after 1 March 2009), applications for testamentary family provision, spouse rebates for tax purposes and entitlements to pension or superannuation on the death of a de facto partner.

In the context of family law, a de facto couple is able to access similar property rights as a married couple. What constitutes ‘de facto’ is therefore relevant. There is a list of criteria used to establish the authenticity of a de facto relationship. To make a declaration that a de facto relationship exists, the Court needs to be satisfied that the relationship falls under the definition of Section 4AA of the Family Law Act 1975.

Definition of a de facto relationship

According to section 4AA of the Family Law Act 1975, a de facto relationship is determined by a series of circumstances, including the extent of common residence, whether a sexual relationship exists and the degree of financial interdependence/commitment to a shared life. One of the following four criteria must be met –

  1. The relationship must have endured for at least 2 years;
  2. There is a child born from the relationship;
  3. The relationship is registered with a State or territory;
  4. One party has contributed substantially to the relationship and if an order was not made there would be a hardship.

Unlike marriages which have no time limit for an application for divorce to be made, de facto couples must apply for a property settlement within two years of the relationship ending. Further, the Court must also be satisfied that the separation occurred after 1 March 2009 to evoke its jurisdiction.

Flexible approach to the assessment of cohabitation

An example of a de facto relationship being found despite the parties maintaining separate residences is Greenwood v Merkel (2004) 31 Fam LR 571; DFC 95-290; [2004] NSWSC 43, where the NSW Supreme Court held that a six-year relationship in which the parties maintained separate residences but spent most nights of the week together (with the exception of a six-month period in which the female partner stayed in the male partner’s residence) was a de facto relationship. The court held that ‘they lived together as husband and wife on a bona fide domestic basis in the way that suited them, and such breaks as there were, were too brief to destroy the continuity of their de facto relationship within the meaning of the statute … Many a normal marriage may suffer the disturbance of similar intermissions’.

In S v B [2005] 1 Qd R 537; (2004) 32 Fam LR 429; DFC 95-282; [2004] QCA 449, a couple had a seven-year relationship, the last four years of which were spent in a residence with two-self contained units, separately occupied by the parties, but with a common living area. The parties shared their meals and continued in a sexual relationship. The Queensland Supreme Court held that the relationship existed through the entirety of the seven years. The court upheld the finding that the period when the  parties lived in separate dwellings is construed as a de facto relationship.

Inflexible approach to the assessment of cohabitation

In Weldon v Levitt (2017) the parties knew each other for approximately 16 years and spent significant time together over this period, however the Court decided that based on the Respondent’s evidence the parties had only lived together on an ad hoc basis, which did not even total a two year period. The Respondent made numerous attempts to move away and protect herself from the Applicant by seeking Intervention Orders and despite there being 2 children of the relationship, it was held that there was no de facto relationship and therefore the Court had no jurisdiction. The Applicant argued that not only did the relationship last for approximately 12 years, but also that the Court should make Orders because there were 2 children born of the relationship. The Respondent’s position was that although there were two children of the relationship, they were born out of an “intermittent intimate relationship” and not representative of the parties being in a relationship at the time, nor was there a relationship for more than two years in circumstances where the Respondent argued the parties only lived together on a few occasions. The Court was satisfied on the Respondent’s evidence that no de facto relationship existed.

The Court made these findings by considering aspects of in Section 4AA such as  the nature and extent of the common residence of the parties was such that the Applicant, despite his evidence, did not live with the Applicant except for on a few occasions, nor did they have any joint bank accounts or bills or invoices addressed to both parties jointly. The Court held that there was no “mutual commitment to a shared life”.

The Court was also satisfied that the existence of two children of the relationship was not enough to establish that a de facto relationship existed pursuant to the Act. The Respondent was seen to be the primary carer of the children with minimal involvement of the Applicant. The Court was satisfied that although the parties had a sexual relationship, it was such that it occurred on a casual basis i.e. boyfriend/girlfriend scenario. The Court also assessed the case on the basis that the parties rarely socialised together. There was also no evidence of the parties jointly purchasing property.

In S v B, it was held that the onus in de facto cases is the reverse to that in marriage cases concerning whether the relationship is in existence. Dutney J stated ‘De facto relationships are by nature fragile. The robust institution of marriage survives until formally dissolved by legal process, even though the parties are no longer a couple and exhibit none of the observable indicia of a domestic arrangement.’

Important aspects to assessing whether a relationship is de facto

  • The public aspect of a relationship

The public aspect of a relationship is crucial in establishing the existence of a de facto relationship. Where parties seek to keep the relationship secret, it becomes difficult to prove. A marriage is a public institution and thus, a de facto relationship must contain some public element to it.

  • Romantic relationship

Evidence that there was a lack of a sexual relationship may be indicative that a de facto relationship does not exist. In Ye v Fung [2006] NSWSC 243, Gzell J, an elderly lady shared her home with a young man. On the question as to whether their relationship constituted a de facto relationship under the then Wills, Probate and Administration Act 1898 it was held that to live together as a couple requires a romantic relationship between the persons constituting the couple. The absence of such a relationship was held to have not established that the couple lived in a de facto relationship with the deceased.

  • Common residence

In NSW Trustee and Guardian v McGrath & Ors [2013] NSWSC 1894 it was held that “Human relationships cover a wide spectrum. The cases show that there have been many situations other than the situation where a man and a woman share the one residence and live as if they were man and wife for the whole week where a de facto relationship has been held to be made out.”

In Na and Tiu (NO 2) [2017] FAM CAFC 269, the Family Court was asked to make a declaration as to the existence of a de facto relationship as part of a property application. It was held that “The making of a declaration about the existence of a de facto relationship …does not involve the exercise of a judicial discretion… Rather, it is the factual determination and the Applicant seeking the declaration bears the burden of proving, to the requisite civil standard, that a de facto relationship existed between the parties.’ In this case the Respondent attempted to cover up the relationship from her family and relatives and the parties never cohabited. It was held that“…the absence of their “full- time” cohabitation does not preclude a finding that they were in a de facto relationship, because the significance of the common residence to the existence of such a relationship turns on its “nature and extent”…., but the respondent’s steadfast refusal throughout the relationship to permanently occupy a common residence with the applicant is significant feature of the evidence. She chose to maintain a separate residence; she was not forced to do so by extraneous circumstances.”

  • Shared finances

The question of joining funds will be a question of fact in each case. A positive finding that the parties have shared bank accounts or that one has financially supported the other will be supportive evidence of finding a de facto relationship. The failure to have a financial interdependence may well be indicative of the state of mind of the parties as to the existence or otherwise of a relationship.

There has been a shift in social attitudes towards marriage in Australia. In Australian society there has been an almost total erosion of the social stigma attached to “living in sin” is no longer there. Today, couples regularly live together and co-parent children without being married. Furthermore, as de facto couples have similar legal and social rights as married couples, there is less pressure placed on couples to marry. Whether or not a person is in a de facto relationship is a question of fact that requires an analysis of all the information available in each case.

If you think that you may be in a de facto relationship and/or  wish to  discuss any aspect of your family law matter, please contact us  on  1300 559 888; or fill out the enquiry form here.