Am I in a de facto relationship?

What is a de facto relationship?

Many people ask the question ‘how long do you have to be living together to be in a de facto relationship?’

Pursuant to the Family Law Act 1975 (Cth) two people are in a de facto relationship if:

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

You don’t need to be living with someone for a set time period to be in a de facto relationship. In fact, couples can be considered to be in a de facto relationship even if they don’t live together all of the time, or if they haven’t lived in the same house for a significant period of time.

When you think about it, there are many reasons why unmarried couples don’t live together. This may be because of work arrangements in different geographical locations, couples preferring to keep their own residences once they are in a relationship, or due to religious reasons.

How to prove you’re in a de facto relationship

So, you’re not married and you think your relationship is genuine. But how do you know if you’re in a de facto relationship?

When working out whether a couple is in a de facto relationship, the Court may consider the following factors:

• The length of the relationship;
• Whether to parties live together or share a common residence;
• Whether a sexual relationship exists;
• Whether the parties are financially dependent or interdependent upon each other;
• Whether the parties own or use property together;
• The degree of ‘mutual commitment to a shared life’;
• The public aspects of the relationship (e.g. do the parties present publicly to their friends and family as a couple, what is their Facebook status?);
• Whether there are any children of the relationship; and
• Whether the relationship is registered under any State or Territory law.

Importantly, not all of these factors need to be met for the Court to consider that a couple is in a de facto relationship. De facto relationships come in many shapes and sizes. The more of these factors that apply to your relationship, to more likely that the answer to ‘I am in a de facto relationship?’ is ‘yes’.

What am I entitled to in a de facto relationship? 

If you have separated from a de facto relationship, you could be exposed to a de facto property settlement or claim for spousal maintenance by your former partner.

You must meet certain thresholds before you can apply for a de facto property settlement or spouse maintenance order.

The Court can only make an order for a de facto property settlement if the Court is satisfied that:

1. The period, or total periods, of the relationship is at least 2 years; or
2. There is a child of the de facto relationship; or
3. The party to the de facto relationship who applies for the order:
   • made substantial contributions; and
   • a failure to make the order or declaration would result in serious injustice to the applicant; or
4. The de facto relationship was registered.

As you can see, there is no set criteria setting out what constitutes a de facto relationship. Every relationship is different.

How to protect property in a de facto relationship

If you are in a de facto relationship and want to protect your property interests in the event the relationship ends, it may be worth considering entering into a Binding Financial Agreement. Binding Financial Agreements are commonly referred to as ‘pre-nuptial agreements’ or ‘pre nups’. De facto partners can enter into this type of Agreement.

It’s particularly important to consider entering into a Binding Financial Agreement with your de facto spouse if:

1. you have previously been married or in a de facto relationship;
2. you have adult children from your previous relationship; or
3. you are in a business with a third party.

You must see a lawyer if you want to entering into a Binding Financial Agreement.

Summary

As you can see, there is no set criteria for a relationship to be considered a de facto relationship. Every relationship and each person’s experience is different.

If you think you are in a de facto relationship, or you have just separated from a de facto partner, it’s important to seek specialist family law advice as early as possible.

If you would like to speak to a Wollongong Family Lawyer or Shoalhaven Family Lawyer about your family law issues, please contact us to arrange an obligation-free initial consultation in-person, by telephone, or online via zoom.