The definition of a de facto relationship for family law purposes is where two people (whether of the same or opposite sex) who are not married nor related by family are in a relationship as a couple on a genuine domestic basis.
For many of our clients, the legal definition of a de facto relationship can be different to how they view their relationship as a couple. Relationships are not nuclear and no two sets of circumstances are the same. The exception is where the couple has a child together. In those circumstances the couple is automatically deemed to be in a de facto relationship.
Why is this important? You might legally be in a de facto relationship without realising. If you are found to be in a de facto relationship and you separate, you and your partner may be entitled to make a claim for a property settlement following the breakdown of your relationship.
How do I know if I am in a de facto relationship? Am I not just dating?
It is recognised in legislation that there is a not a “one size fits all” approach when it comes to proving the existence of a de facto relationship. The Family Law Act 1975 (Cth) (The Act) lists a number of factors which are taken into consideration. They include:
- The duration of the relationship. How long was the relationship for? Were there extended periods of the time where the couple took a break and saw other people?
- Nature and extent of the common residence. Did the couple live together? To what extent? How many nights did they spend with each other per week?
- Whether a sexual relationship existed. Where they regularly intimate? Did they have separate bedrooms? Why so?
- The degree of financial interdependence or financial dependence. Did one person pay for all household expenses and rent or were these expenses shared? Did one person financially support the other? Did they open a joint bank account? Were finances intermingled?
- The ownership, use and acquisition of their property. Did they purchase property together? Did they become a co-signature on a mortgage? Were they both named on a rental agreement?
- The care and support of children. Did they financially support each other’s children? Did they take children to and from activities? Did they fulfil a step parent role?
- The reputation and public aspects of the relationship. Did they meet each other’s family members? Did the family members view them as a couple? Did their friends know about the relationship?
In the recent case of Bahan & Pinder [2021] FedCFamC2F 347 (11 November 2021) (Bahan & Pinder) the Court applied the above factors in determining if a de facto relationship existed.
The Applicant maintained that she and the Respondent lived together in Tasmania as a de facto couple from March 2012 to June 2019. The Respondent maintained that the relationship was causal, they were girlfriend and boyfriend, save for a couple of months.
The Applicant was a 31 year old administration assistant. The Respondent was a 29 year old tradesman. His FIFO work meant he would spend 28 days interstate followed by 7 days at home with the Applicant in Tasmania. A significant part of the Respondent’s case was that the parties’ did not reside together, or share a common residence for the majority of time.
The Judge ultimately found the parties’ were in a relationship as a couple on a genuine domestic basis and they were not dating casually. The pertinent evidence included:
- The parties shared all facets of day to day life together which were only briefly interrupted by two short periods of separation and then reconciliation;
- The parties’ shared a common residence that the Applicant maintained when the Respondent was absent for FIFO work including completing chores and housework on his behalf;
- The parties shared a sexual relationship whilst not being continuously exclusive;
- The parties’ earned individual incomes and provided financially for themselves to a degree, but the Respondent provided financial support to the Applicant who was financially dependent on him; and
- They socialised as a couple and were perceived by their mutual friends as a couple.
Bahan & Pinder provides us with an example of how two people can be determined to be in a relationship on a genuine domestic basis even where they had short periods of separation, their relationship was not monogamous at times, they were of a relatively young age and they spent more time living separately than together due to employment obligations.
If you are currently in a relationship, looking to commence a relationship or have recently separated, it is important to obtain advice from a family lawyer to ascertain the status of that relationship to discuss asset protection or your entitlement to a property settlement under the Act.
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