Over the last few decades, Australia’s family law system has evolved significantly to recognise de facto relationships. These developments in the law are a result of changing societal values and attitudes towards relationships outside of marriage.
Nowadays, de facto couples are entitled to much of the same financial, property, and parental rights that the law affords to married couples.
For this reason, it is important to be aware of the potential legal implications that may arise when entering into a relationship or moving in with your partner.
The legal definition of de facto relationship under Australian family law
With the exception of Western Australia, the Family Law Act 1975 (Cth) deals with all de facto relationships in Australia.
Section 4AA (1) of the Act sets out the meaning of de facto relationship. According to this provision, a person is in a de facto relationship with another person if they meet the following three criteria –
- (a) The persons are not legally married to each other;
- (b) The persons are not related by family – this includes if one person is the child of the other, one person is another descendant of the other or if they have a parent in common; and
- (c) Having regard to all the circumstances of their relationship, the persons have a relationship as a couple living together on a genuine domestic basis
Notably, de facto relationships can be between two people of the same sex or opposite sex. It is also possible to be in a de facto relationship if you are still legally married to, or in another relationship with, a third person.
Much similar to the federal meaning of the term, a de facto relationship in Western Australia involves ‘two persons who live together in a marriage-like relationship’.
How is a de facto relationship determined?
Because these definitions are so broad, determining whether or not a de facto relationship exists is no easy task. For years, the Family Court has dealt with disputes over what it means to live together on a genuine domestic basis.
Thankfully, s4AA (2) of the Family Law Act 1975 sets out a list of factors that can provide some additional guidance. These factors may be relevant but are not necessarily determinative when proving the existence of a de facto relationship.
(a) Duration of the relationship – There is no specific requirement regarding the duration of a de facto relationship in the actual definition of the term. However, case law suggests that the longer the relationship, the easier it is to prove it exists.
(b) The nature and extent of the common residence – This factor will look to whether the couple has lived together during the course of their relationship. The language ‘nature and extent’ suggests that a couple may be in a de facto relationship despite maintaining separate homes.
(c) Whether a sexual relationship exists – Whether a long-standing sexual relationship does or does not reach the threshold of a ‘shared life’ will often be a question of fact that depends very much on the circumstances of the individual couple.
(d) The degree of financial dependence or interdependence, and any arrangements for financial support – Here the court might consider whether you share a joint bank account or contribute equally to household expenses and groceries.
(e) The ownership, use and acquisition of property – Property may include real estate, furniture, chattels or even household pets. The court may also look at how much each party contributes to mortgage repayments.
(f) The degree of mutual commitment to a shared life – Couples may demonstrate a mutual commitment to a shared life in various ways. In addition to living in a common residence, consider whether you spend regular time with your partner’s loved ones, share meals or have regular conversations over the phone.
(g) Whether the relationship is registered under a prescribed law of a state or territory – Couples can apply to register their relationship under relevant state or territory legislation. A registered relationship often raises the presumption that a domestic relationship exists.
(h) The care and support of children – When a couple has children together, this serves as a strong indication that a de facto relationship exists. The court may also consider whether a person is caring for their partner’s children from another relationship.
(i) Reputation and public aspect of the relationship – When couples appear together in public and attend events such as family gatherings or weddings, this may indicate the presence of a de facto relationship.
Ultimately, a court’s assessment of a de facto relationship will boil down to the particular facts of each case. Because human experiences of relationships will differ across time and place, there can be no single model of what a committed relationship looks like.
Case law examples
It is common for separating couples to disagree over whether a de facto relationship did or did not exist. In these circumstances, the Family Court or Federal Circuit Court may intervene to help settle the dispute.
In the decision of Na & Tui (No 2) , Mr Na sought recognition of an alleged de facto relationship with his former partner, Ms Tiu. Mr Na argued the couple were in a 7-year de facto relationship. Ms Tiu asserted that Na was merely her ‘boyfriend’.
The court ultimately found in favour of Ms Tiu and declared that the parties were never in a de facto relationship. The following evidence informed the court’s decision –
- Ms Tiu demanded secrecy of the relationship – there was no public notoriety, no mutual friends and no public displays of affection;
- Ms Tiu maintained her relationship with her husband while she was also seeing Mr Na;
- Ms Tiu and Mr Na never shared a home – Mr Na would only stay overnight at Ms Tiu’s residence when her children were away;
- There was no joint property, and the parties’ investments and Ms Tui’s business remained segregated throughout the course of the relationship.
In the case of Bannister and Pergolesi , a dispute arose concerning the duration and ending of the couple’s de facto relationship. Mr Pergolesi contended that his relationship with Ms Bannister ended in 2012 when their sexual relationship became almost non-existent. From 2012 onwards, Mr Pergolesi reignited a relationship with a former girlfriend.
Notwithstanding these claims, Cronin J declared that a de
facto relationship with Ms Bannister existed until early 2018. Particular weight was attached to the
following facts –
- There was extensive evidence of a ‘public face’ to the relationship – including media appearances and joint attendance at family events;
- Mr Pergolesi supported Ms Bannister and her children financially;
- The couple spent significant days together – such as Valentine’s Day and Mother’s Day.
These decisions illustrate that relationships are often complex and multi-faceted.
Why is it important to recognise a de facto relationship?
The existence of a de facto relationship is particularly significant if you decide to split from your partner. The Family Court can make property and spousal maintenance orders when a de facto relationship breaks down in the same way as it would for a married couple.
The Family Law Act sets out several conditions which must be met for a de facto party to apply for property adjustment or maintenance orders. These conditions include the following –
- The de facto relationship must have lasted more than a period of two years;
- A child exists as a result of the de facto relationship;
- A substantial contribution was made to either the assets or welfare of the family, and a failure to make the requisite order would result in serious injustice; or
- The relationship is registered.
Beyond matters relating to separation and property settlement, the legal status of a de facto relationship is relevant to superannuation, estate planning and parenting orders.
Financial agreements for de facto relationships –
De facto couples deserve the security of a mutually agreed contract in writing, for their own protection. Having a Binding Financial Agreement in place can help to safeguard assets and avoid future disputes arising upon relationship breakdown.
At RP Emery & Associates, we offer a Financial Agreement Legal Review Service to save you the stress, heartache and cost of settling property or spousal maintenance matters within the family law court.
Our range of professionally drafted agreements can be entered into by a couple –
• Contemplating entering a de facto relationship;
• Who is currently in a de facto relationship; or
• Whose former de facto relationship has broken down
If you’d like to learn more about our legal review service, please visit this link.