03 Apr Please, will someone just tell me if I’m in a de facto relationship!?
Many a law blog/post/article/vlog I have viewed in recent months has not really assisted in this confusion.
A de facto relationship is defined in different ways under different laws in Australia (and the respective States and Territories). To the Department of Immigration, it means one thing, to Centrelink another and to the Family Courts something different again.
“De facto relationship” is simply the term used to define two people living together as a couple on a genuine domestic basis in a “marriage-like” relationship.
This therefore is distinguishable from a room-mate type relationship. However, over the years, several of my de facto relationship clients had commenced as room-mates. Where the relationship type changes can be complicated.
Likewise, and conversely, the same can be said about on-again-off-again relationships where the parties are not legally married and being able to pinpoint the date of separation of a de facto relationship can be difficult, where the couple remain living together after separation (often for financial reasons).
Section 4AA of the Family Law Act clearly defines the parameters on when a relationship is considered de facto:-
Meaning of de facto relationship
(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; 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.
Subsection (2) takes the definition further, as the section terms it “working out if persons have a relationship as a couple” as follows:-
(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; and
(i) the reputation and public aspects of the relationship.
What is important to note, is that the above is simply how the Family Law Actdefines what a de facto relationship is. The ability of one party to bring a claim against the assets of the other upon the breakdown of such a relationship is another thing entirely.
Unfortunately, some lawyers have run into error in attempting to offer a broad-brush summary of what is a complicated area of law.
The takeaway: just because your relationship might meet some of the above criteria, doesn’t mean that you’re open to a claim and/or that you will lose half your assets in a de facto property dispute.
Also Read Here : Family Law Advice