Understanding De Facto Relationships

There is a growing body of case law that applies the definition of a de facto relationship. Questions about the existence of a de facto relationship and when it began are crucial issues in  many cases. This is because parties may argue that there was no de facto relationship or that it lasted for less than two years. In either scenario, they assert that there is no basis for property adjustment or maintenance orders under Part VIIIAB of the Family Law Act 1975 (Cth).

Generally, a de facto relationship includes people who have not undergone any form of marriage but live together, at least some of the time or have financial dependence on each other. A de facto relationship can be addressed under the Family Law Act when the parties separate.

Defining De Facto Relationships:

Section 4AA of the FLA defines a de facto relationship as arising when two people ‘have a relationship as a couple living together on a genuine domestic basis.’ They are not legally married to each other and are not related by family. The question of whether a de facto relationship has been established is considered ‘having regard to all the circumstances of their relationship.’

FLA s 4AA(1)(c) and  Section 4AA(2) list circumstances that may be considered, including the duration of the relationship, the nature and extent of common residence, the existence of a sexual relationship, the degree of financial dependence, ownership and acquisition of property, mutual commitment to a shared life, registration of the relationship, care and support of children, and the reputation and public aspects of the relationship.

Legal Considerations for De Facto Relationships:

When deciding whether a de facto relationship exists, the court generally considers:

  • The duration of the relationship
  • Where and how the couple lived together
  • The existence of a sexual relationship
  • The nature of their financial relationship
  • Ownership and use of property
  • The degree of mutual commitment to a shared life
  • Care and support of children
  • How others perceive the relationship
  • Whether the relationship is registered

In some states and territories, it is now possible to register a relationship, regardless of whether the parties are heterosexual or homosexual. In NSW, unmarried couples, including same-sex couples, can register their relationships to establish their legal status and ensure they receive the same legal entitlements as married couples. The register, managed by the NSW Registry of Births Deaths and Marriages, does not provide civil unions, but registered relationships are considered equivalent to de facto relationships under NSW law.

For financial disputes, the requirements are different:

  • The relationship must have lasted for two years
  • There is at least one child born in the relationship
  • One party has made an order, and it would be very unjust not to recognize it
  • The relationship is registered
  • Applications have been lodged within two years of the relationship ending

Entitlements for people in De Facto Relationships:

Couples living together may be entitled to the same benefits normally paid to spouses. Evidence of having lived together for some years is usually required. Benefits may include pension rights, funeral benefits for a deceased partner, and payments of benefits if you are a dependent of a person formerly in the armed services, Centrelink, the Department of Veterans Affairs, or the branch of the armed services you or your partner joined. Other entitlements may involve workers’ compensation, superannuation, wills, and binding financial agreements.

Financial Agreements

A binding financial agreement outlines:

  • When you began to live together
  • What you both own
  • Contributions each expects to make
  • Expectations during the relationship and upon separation

A court lacks jurisdiction under the FL Act and has no power to make any financial orders in respect of a de facto relationship unless it first declares that the parties were in a de facto relationship as defined in the FLA. A de facto couple can also enter into a financial agreement like a married couple. Before a financial agreement between de facto partners becomes binding and enforceable, both parties must receive independent legal advice about the agreement’s effect on their rights and the advantages and disadvantages. Each party should receive a signed copy of the statement of advice provided to them and the other party.

In a legal case involving Centrelink, inconsistent information provided to Centrelink about the existence of a de facto relationship was not seen as a deal-breaker. In the Gissing and Sheffield case, it was claimed that the applicant had previously told Centrelink they were not in such a relationship. The argument against recognizing the relationship in family law proceedings was based on this inconsistency. The applicant argued that they made this representation to Centrelink with the knowledge of the other party and that the other party benefited from it.

Judge O’Sullivan  in that case referred to legal precedents such as Elias v Elias (1977) FLC 90-267. These cases highlight that it’s reasonable for a court to consider that a party cannot use a representation for their benefit at one point and then later deny it to gain a different advantage. This principle, known as the ‘Elias principle’, was applied to the entire set of evidence in the case, including the respondent and the applicant’s assets in a financial application to an institution. Ultimately, O’Sullivan J concluded that the issue with Centrelink did not invalidate the applicant’s case, and the existence of the de facto relationship was confirmed under section 4AA FLA in this instance.

If you’re seeking expert Family Law advice regarding de facto relationship situations please call us at 1300 559 888. We offer a 20-minute complimentary consultation to discuss how we can assist you with every aspect of the property settlement, including applying for property Orders and addressing any other queries you may have about your entitlements.

We provide expert  legal advice to help you secure the settlement you are entitled to.