What Legally Qualifies a Defacto Relationship

August 4, 2022
Defacto Facts

According to the Federal Circuit Court and Family Court Of Australia, a De Facto relationship is one where two parties of the same or opposite sex are living together in a domestic relationship. If the two parties are married or from the same family, then they do not legally qualify as a Defacto Relationship.

What the Court looks at to prove a party was in a de-facto relationship with another party

Section 4AA of the Family Law Act defines a de facto relationship as being:

  1. The persons are not legally married to each other;
  2. The persons are not related by family; and
  3. Having regard to all the circumstances, they have a relationship as a couple living together on a genuine domestic basis.

However, the Court has interpreted “genuine domestic basis” in many different ways.

There have been instances where the Court has determined that the parties have been in a de-facto relationship, however, were not residing together. A real-life example of this is that the parties have maintained separate residences throughout their 7-year relationship. During this time, the parties spent a considerable amount of time together at one party’s residence in particular, as well as holidaying together. In this situation, the Court held that the “fact that the parties did not reside together at one home and instead kept separate residences, did not preclude a finding that they were “living together as a couple on a genuine domestic basis.

In coming to a decision, the Court must have regard to “all the circumstances of the relationship”, which may include the factors set out in section 4AA(2) of the Act. These include:

  • the duration of the relationship;
  • the nature and extent of their common residence;
  • whether a sexual relationship exists;
  • The degree of financial dependence or interdependence and any agreements for financial support between them:
  • the ownership, use and acquisition of their property;
  • the degree of mutual commitment to a shared life;
  • 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;
  • the reputation and public aspects of the relationship.

De-facto Settlements and Entitlements

court gavel

An applicant in a de-facto relationship may commence proceedings in the relevant court as if they were a married person, whether it is in respect of a financial cause, a parenting matter or both issues. The relevant courts are:

  1. The Federal Circuit and Family Court of Australia;
  2. The Supreme Court of the Northern Territory; or
  3. A court of summary jurisdiction of a participating jurisdiction.

In broad terms, a de facto couple may apply for their property matters to be dealt with under the Family Law Act provided:

  1. They are two adult persons of either gender;
  2. Who live together on a genuine domestic basis;
  3. They are not family (that is, they are not related)
  4. Their relationship is of at least two years in total; and
  5. At least one-third of their relationship has been spent in a relevant referring jurisdiction.

Procedural Steps

defacto couple seperating

The procedure for separated de facto parties is essentially the same as for married parties, with the exception that litigation in relation to property matters must commence within 2 years of separation. If you miss the statutory timeframe, there are exceptions to this rule whereby a party can file out of time (with the leave of the Court).

With respect to parenting matters, like married couples, de facto parties are required to attempt to resolve their own matter by participating in family dispute resolution. Having attended such a conference, a section 60I certificate will be issued, which will accompany the Initiating Application and supporting Affidavit.

CM Lawyers have had many clients ask us, “do I have a claim?” “We were not living together, but we spent a lot of time together and purchased a property”.

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