Why Is It Important to Know If You’re in a De Facto Relationship in Australian Family Law?

The Family Law Act 1975 (Cth) gives de facto couples similar rights to married couples in areas like property settlement, financial support (spousal maintenance), and parenting matters.

What is a de facto Relationship?

A de facto relationship is a relationship between two people, who are not married to each other, but who are living together on a genuine domestic basis. This applies to both heterosexual and same-sex couples.

It may also apply to someone who is legally married to someone else while also in a de facto relationship (meaning a person can be married to one person and in a de facto relationship with another person at the same time).

The legal rights and obligations of de facto partners are similar to those of married couples. They have a right to seek a property settlement and spousal maintenance.

The question becomes –

How do I know if I am legally considered to be in a de facto relationship?

Ultimately, the Court will have regard to all of the circumstances of the relationship when determining whether a couple have lived together on a genuine domestic basis and whether there was a degree of mutual commitment to a shared life so as to create a de facto relationship.  The Court looks at factors like:

1. The duration of the relationship:

   • The Court will consider what the length of the relationship was, from the beginning right until the end. The Court will consider if there were any periods of time where the couple broke up or saw other people.
   • Importantly, a person can be in a de facto relationship with multiple people at the same time. Likewise, a person can be married to someone and in a de facto relationship with someone else.

2. Cohabitation

   • Living together, under the same roof, is a primary indicator of a de facto relationship. Evidence to support this may include a jointly signed lease agreement, bills or utilities in joint names or any correspondence addressed to both you and the other party at the same address.
   • You may wish to obtain evidence from friends or family members who can attest to you and your former partner cohabitating, including their observations regarding you both living together.
   • Importantly, a de facto relationship can still be found to exist even without living together.

3. Financial interdependence

   • Evidence demonstrating intertwined finances between you and your former spouse can also be used to demonstrate a de facto relationship.
   • This may include the sharing of joint accounts, joint financial endeavours or shared economic responsibilities.
   • Shared economic responsibilities may include joint utility bills, mortgage repayments or rental repayments. Shared investments or financial responsibilities, such as property ownership, can play a significant role in illustrating financial interdependence.

4. Children

   • Sharing a child or children can be a strong indicator of a de facto relationship. However, it is not determinative. Simply having a child does not mean you are automatically in a de facto relationship.
   • Documents or evidence that demonstrates each parent engaged in the child’s life, such as a birth certificate, signed permission notes or attendance at parent/teacher interviews, may assist in illustrating the existence of a de facto relationship. Not only do these documents assist in evidencing a biological connection, but also a deep level of commitment and shared responsibility in raising the child. This could assist in providing that both your relationship has the characteristics of a long-term committed partnership similar to that of a married couple.

5. Public Perception

   • The way your relationship is perceived by others plays a significant role in establishing its de facto status. It’s important to demonstrate how you and your partner present yourselves as a couple in public.
   • Evidence of you both at various events, such as family gatherings, holidays, or social functions, can assist in illustrating the public aspects of your relationship. Joint invitations to events or functions where you are addressed as a couple would further assist.
   • It may be that affidavits from friends, family members or work colleagues assist in giving insight into how your relationship is viewed in the community.

Each case is assessed on its own facts, and no single factor is determinative of a de facto relationship existing.