Are You In A De Facto Relationship?

Recognising The De Facto Relationship Status

In November 2008 the Family Law Amendment (De Facto Financial Matters and Other Measures) Act came into being.  This meant that any couple living in a de facto relationship would have their relationship recognized under the Family Law Act. 

This gave rights to people to persons in de facto relationships to have the same legal obligations and rights as those in a marriage.

RECENT DECISIONS

There is a recent decision where a woman sought to have her de facto relationships recognized in proceedings in the Family Court. There was one child of her relationship with what she alleged was her partner.

Although the couple did have a child the Court ruled that there were not de facto relationships and therefore the Applicant did not receive the benefits which would arise if a relationship had been found to exist.

Therefore, what is the meaning of a de facto relationship?

The relevant section of the Family Law Act defines a de facto relationship as having the following meaning:

• A person is in a de facto relationships with another person if:

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

Guidelines for De Facto Relationship Recognition

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The legislation provides some guidelines but these are guidelines only to determine if de facto relationships exist.  These circumstances may include any or all of the following:

• The duration of the relationship;
• The nature and extent of their common residence;
• Whether a sexual relationship exists;
• Degree of financial dependence or independence, and any arrangements for substantial 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.

No particular finding in relation to any of these circumstances is to be regarded as necessary in deciding whether the persons have a de facto relationship.  The Court can have regard to such circumstances.

For the purposes of the legislation a de facto relationships can exist between two persons of different sexes and between two persons of the same sex.

A de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationships.

It can be seen therefore that de facto relationships may be hard to establish.  There is no marriage certificate as in a marriage which clearly defines that marriage exists.ARE

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De Facto Relationship in Australian Law