De-facto relationships are specific relationships defined within section 4AA of the Family Law Act 1975 (Cth) (‘the Act’). If you are recognised as being in a de-facto relationship under this provision it provides you with certain legal protections. If you have chosen not to get married but are worried about the implications if your relationship breaks down, this provision is relevant to you and the division of yours and your ex-partners property. Both same-sex and heterosexual couples can qualify for these protections where they meet the necessary requirements, as noted below.
What is a de-facto relationship?
According to section 4AA, a person is in a de-facto relationship where they are not legally married to one another, they are not related by family and “having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis”.
In determining whether a couple has a relationship, the court will consider a number of factors. It is not necessary for all of these factors to be met and the court only needs to have regard to each in determining the existence of a de-facto relationship. These include:
- Duration of relationship;
- Nature and extent of their common residence;
- Whether there is a sexual relationship;
- Financial dependence, interdependence or support;
- Ownership, use and acquisition of property;
- Degree of mutual commitment to living a shared life;
- Whether the relationship is registered under a prescribed law;
- Whether there are children of the relationship and their care and support; and
- The reputation and public aspects of the relationship.
If you are considered a de-facto couple and your relationship has broken down, you have two years from the date of your separation to make a claim for property settlement. In dividing your property, the Court will, amongst other things, take into consideration both financial and non-financial contributions made by both parties. You can also apply for child-support through the Child Support Agency.
How the law on de-facto relationships has changed
In the last two decades the law has slowly started to increase its recognition of same-sex relationships. The legal protections for these couples have started to become equalised with heterosexual couples. In 1999 an amendment to the Property (Relationships) Act NSW saw same-sex relationships come within the definition of a ‘de-facto relationship’ in New South Wales.
A decade later, the federal government introduced and passed the ‘same sex law reform package’ in November 2008. This was in direct response to the Human Rights and Equal Opportunities Commission’s inquiry identifying discriminatory federal laws in relation to same-sex couples and their children. These groundbreaking reforms brought de-facto couples into the federal property regime. They made it unlawful to discriminate against same sex de-facto couples in a number of important areas.
Discrimination became unlawful in areas including family assistance, superannuation, citizenship, immigration, aged care, social security, pharmaceutical benefits, Medicare, veteran’s entitlements, child support and family law. This made treating same-sex de-facto couples differently from their heterosexual counterparts in all areas of family law discriminatory, including property, children, and surrogacy. The definition of a ‘parent’ and ‘child’ also expanded to include lesbian parents who have a child through alternative reproductive means, and to a lesser extent, recognising children born through surrogacy.
An entirely new section (Part VII-IAB) was inserted into the Act to largely mirror the financial protections relating to married couples. This essentially expanded the financial provisions to relate to de-facto couples instead of to married couples exclusively. This new section allows the court to order the division of a de-facto couple’s property and to split the superannuation entitlements of either partner. While these changes are not groundbreaking in novelty, they represent a clear and marked movement in the law towards legally recognising same-sex couples.
Aldridge & Keaton
An important case following these reforms was Aldridge & Keaton  FamCAFC229. This case was heard by the Family Court and concerned a dispute over the parenting rights of a separated lesbian couple’s child. One of the couple was the biological parent of the child. While the Court decided the non-biological partner was not a ‘parent’, this rested on the fact that the couple were not living as a de-facto couple at the time of conception.
The then Chief Federal Magistrate based this decision on the couple’s differing places of residence, financial independence from one another and lack of sexual relationship at the time the child was conceived. This decision highlights that where a same-sex couple qualifies as a de-facto relationship under the current legislation, they have avenues for redress in parenting disputes where the child is not be the biological child of both parents. This was only possible because of the 2008 federal reforms including same-sex couples under the ambit of de-facto relationships.
If you are experiencing a relationship breakdown or require advice on whether you are a part of a de-facto couple and what your options are going forward, it is very important you seek qualified, independent legal advice. If you would like more information on how the Family Law Team at Genesis Edge can assist you, please contact us on +61 2 8355 3737 or 1300 559 888, or fill out the enquiry form here.