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HOW ARE THE STRESS LEVELS GOING? One of the most frequently asked questions we are asked is “Am I in a de facto relationship?”. This is often considered one of the most complex areas of Family Law and it requires a measured approach. Meaning of de facto relationship A person is in a de facto relationship with another person if: The persons are […]
One of the most frequently asked questions we are asked is “Am I in a de facto relationship?”.
This is often considered one of the most complex areas of Family Law and it requires a measured approach.
Meaning of de facto relationship
Working out if persons have a relationship as a couple
A de facto relationship is defined under section 4AA of the Family Law Act.
De facto couples under the new legislation are able to enter into financial agreements regarding assets acquired:
This part of the de facto legislation in the Family Law Act only applies to partners in de facto couples who:
Parties who separate prior to 1 March 2009 can, by the consent of both parties, elect to have the matters dealt with in the Family Court. If separation occurred prior to 1 March 2009, the provisions of the Property Law Act 1974 (Qld) will apply.
Separation prior to 1 March 2009 – De facto property matters remain under the State Property Law Act and are dealt with in the State Supreme and District Courts.
For example in a recent case in which we were involved the question arose, “Did the facts of our client’s case establish a de facto relationship? If so, did the relationship continue after 1 March 2009?
Our client in his instructions states that the relationship with the Applicant commenced in or about 2006. At that stage, it was a casual relationship although they had sexual intercourse during this period. The relationship did develop and they saw each other exclusively for a short period of time of 4 to 5 months towards the end of 2007 or the beginning of 2008. The relationship did deteriorate after this point in time and the relationship became more of friendship than an exclusive relationship with each other. From early 2009 the parties began taking out other people and our client had sexual relationships with other people.
If the relationship ceased before 1 March 2009 then the Family Court has no jurisdiction and to determine this matter the application should have been brought in the State Court.
The parties at all times lived separately and apart and at no time did they share accommodation.
During the first 2 years of the relationship, our client and the Applicant would holiday together approximately once per year. Our client’s partner requested our client to sign a Financial Agreement to protect her assets. Our client after obtaining limited legal advice signed the agreement. For a period of 6 months prior to signing the Financial Agreement in 2010, the parties were spending approximately one day per month together.
There is no definite formula for determining if the parties were in a de facto relationship in Australia. The relationship can take many forms. However, the test would be that to an outsider looking at the couple would that outsider say that they were in a shared relationship that had all the attributes of marriage. This is purely a discretionary consideration for the Court. On the evidence provided by our client, there is a strong possibility that the relationship was only for a short period of time of 4 to 5 months and after that time it was not a de facto relationship but more of a relationship of friendship. If the Court reaches this conclusion then the Court does not have jurisdiction to make a decision in regard to the Financial Agreement and the Applicant’s application should be dismissed. However, this is a discretionary decision of the Judge hearing the matter. A judgment in regard to this would vary with different Judges determining these issues.
Taking into account the factors listed under the heading ‘Meaning of a de facto relationship’ the following matters of our client’s case are relevant:
These are only guidelines for the decision of the Judge but they would indicate that there was not a de facto relationship in Australia save for the short period mentioned. The matter remains to be tested in the Family Court.
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