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Defining De Facto Relationships in Australia

There are a lot of misconceptions about what a de facto relationship is with most people believing that the only criteria used to determine the same is a married-like relationship of at least 2 years.  

Maidei Kutsanzira gives insight into what the Court takes into consideration when determining what a de facto relationship is. 

The Federal Circuit and Family Court of Australia, (“FCFCOA”) is empowered with jurisdiction to make property settlement Orders in de facto relationships only where certain conditions are met, as explained by Justice Murphy in the Full Court decision of Fenton v Marvel [2013] FamCAFC 132:

1. The de facto relationship broke down after 1 March 2009;

2. The de facto relationship was a genuine de facto relationship, as defined in section 4AA of the Family Law Act 1975;

Subsection (2) of Section 4AA categories to be considered:

  • The duration of the relationship: short, transient or volatile one-night stands, for instance, are less likely to be considered a genuine relationship;
  • The nature and extent of their common residence: if the parties operated separate homes, it is less likely to be a genuine relationship than if they shared one home together;
  • Whether a sexual relationship exists: some relationships don’t have much sexual frequency, as for instance where one partner works away from home for extended periods. Sex is just one factor, among many;
  • The degree of financial dependence or interdependence, and any arrangements for financial support, between them: this factor is weighed quite heavily by the Courts – if one party relies on the other and the other is aware and supports the former, it is more likely to be a genuine relationship;
  • The ownership, use and acquisition of their property: if the parties buy property in joint names, or purchase assets from joint funds, this is also likely to be a genuine de facto relationship;
  • The degree of mutual commitment to a shared life: making sacrifices for the other partner, for example;
  • Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
  • The care and support of children: whether the children be from the relationship or from previous relationship(s), each party’s role in parenting those children is relevant. The more involved, the more likely it is a genuine de facto relationship;
  • The reputation and public aspects of the relationship: Instagram, Facebook posts, SMS messages are all frequently relied upon in this element to demonstrate that the partner(s) regarded the other as more than just ‘a friend’.

Subsection (3) of Section 4AA, ‘No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship’.

Subsection (4) of Section 4AA, a Court, ‘is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case’.

3. The de facto relationship existed for at least 2 years (and the 2-year threshold can be aggregated by adding separate periods together).

The 2-year threshold, on the other hand, is one of common misconception. Most parties have the misunderstanding that a de facto relationship only needs to last 6 months before the partner can make a claim. In general, that is incorrect. As in most areas of law, however, there are exceptions.

Where, for example, the relationship is less than 2 years in aggregated length, but the parties have a child (or children) together, or one of the parties made substantial financial, parenting, or non-financial contributions to the relationship, the Court may still make a declaration under section 90RD that a de facto relationship existed between the two parties.

Once such a declaration is made, the applicant can then bring a claim for a property settlement pursuant to Section 90SM. Even though the relationship may be very short, such an applicant, particularly if they have the primary care of the child of the relationship, may secure a sizeable property settlement in their favour.

For more information on de facto relationships, please contact our experienced specialist family law team today on 1300 537 306  or send us an email at admin@meredithlawyers.com.au

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