Am I in a de facto relationship and what does it mean?

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If you are, or were, in a de facto relationship you have rights under the Family Law that you would not have otherwise had.

Broadly speaking, the Family Law allows people who are, or were, in a de facto relationship to: enter into financial agreements, make applications for spousal maintenance, and make application for alteration of property interests (property settlement).

Therefore, it is important to know whether your relationship is a de facto relationship and when your relationship may have become a de facto relationship.

A de facto relationship is defined in the Family Law Act as:

‘(1) A person is in a de facto relationship with another person if:

                     (a)  the persons are not legally married to each other; and

                     (b)  the persons are not related by family (see subsection (6)); and

                     (c)  having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

In determining whether you are living together on a ‘genuine domestic basis’ the Act says:

‘Working out if persons have a relationship as a couple

             (2)  Those circumstances may include any or all of the following:

                     (a)  the duration of the relationship;

                     (b)  the nature and extent of their common residence;

                     (c)  whether a sexual relationship exists;

                     (d)  the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

                     (e)  the ownership, use and acquisition of their property;

                      (f)  the degree of mutual commitment to a shared life;

                     (g)  whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

                     (h)  the care and support of children;

                      (i)  the reputation and public aspects of the relationship.’

In most cases there is agreement between the parties on whether they were in a de facto relationship and when the relationship started. However, when there is not agreement, it can become very difficult to determine if there was a de facto relationship because even if you can clearly show that a number of the above indicia are present in the relationship, that does not necessarily mean that a de facto relationship exists. For example, in the matter of Swinbank & Stein [2022] FedCFamC1F 682 the Court found that while the parties had two children together, there was not enough evidence to permit a finding being made that the parties were living together on a genuine domestic basis (and therefore they were not in a de facto relationship).

If you are considering commencing court proceedings, or court proceedings have been commenced against you, and you are concerned that your relationship may or may not have amounted to a de facto relationship you should seek legal advice on that point. Our expert family lawyers at FC Lawyers are here to help you to answer any of your family law questions. Contact our team today.

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