Are De Facto Relationships The Same as Marriage?

Are De Facto Relationships The Same as Marriage?

Can I get a property settlement if I’m not married?

The Family Law Act 1975 (Cth) (“the Act”) provides that people who are in a de facto relationship, have equal rights and obligations as those who are married. A de facto relationship includes two persons of the same or different sex.

But what is a de facto relationship and how do you know if you are in one?

Section 4AA(1) of the Act defines a de facto relationship as being between people who are not legally married, are not related and have a relationship as a couple living together on a genuine domestic basis. The Court takes into account a number of factors when considering whether people are in a relationship as a “couple” which include:

1. The duration of the relationship. Section 90SB of the Act requires the relationship to be a duration of at least 2 years in length.  This period can be aggregated if there were periods of separation, provided the entire relationship when the parties were a “couple” was at least a period of two years;
2. The nature and extent of their common residence. This does not necessarily mean that the parties lived together in a joint residence.  It can include periods where the parties live in separate households but come together on weekends or for holidays;
3. Whether a sexual relationship exists. It is important to note that this is not the only factor and like all of the considerations, one factor is not determinative as all factors are considered jointly;
4. The degree of financial dependence or interdependence and any arrangements for financial support between them;
5. The ownership, use and acquisition of property together;
6. The degree of mutual commitment to a shared life;
7. Whether the relationship was registered. In some cases, you can register your relationship status, for visa purposes as one example;
8. The care and support of children;
9. The reputation and public aspects of the relationship. This considers how family and friends view the parties relationship and whether the parties held out to be a “couple” to others.

Although it may be obvious if people are in a de facto relationship, there are many cases where the status of a relationship is challenged by a party.  An example of this can include where parties were room mates and although they may have had a brief sexual relationship and shared a home for at least 2 years, these may be the only factors from the above list which would unlikely result in a finding that a de facto relationship existed.

If a challenge is made by a party that there was no de facto relationship, the Family Law Courts must first determine whether a de facto relationship existed and a declaration would be made as to the existence (or not) of a de facto relationship.  If the declaration is made, then the parties can proceed to a property division.  If not, then there are no grounds for a property division between the parties in the Family Law Courts however there may be provision for a civil claim if there were some intermingling of funds.

If you are unsure whether you can claim a property division or if someone is trying to make a claim against you, contact Lewis Family Lawyers and we can provide you with advice as to whether a declaration is likely to be made.