Law Blog

If you are asking yourself the question "am I in a de facto relationship?" read on...

In Australia, there isn't a clear cut answer to your question. Instead, there is a range of criteria that a court will consider when deciding if two people live in a de facto relationship. The implications of living in a de facto relationship are wide ranging, and how exactly such a categorisation of your relationship would impact on your life is a matter you should discuss with your solicitor.

The Family Law Act 1975 (Cth) defines de facto relationships like this:

4AA De facto relationships

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 (see subsection (6)); 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.

Paragraph (c) has effect subject to subsection (5).

Working out if persons have a relationship as a couple

             (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;

                      (i)  the reputation and public aspects of the relationship.

             (3)  No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.

             (4)  A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

             (5)  For the purposes of this Act:

                     (a)  a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and

                     (b)  a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

When 2 persons are related by family

             (6)  For the purposes of subsection (1), 2 persons are related by family if:

                     (a)  one is the child (including an adopted child) of the other; or

                     (b)  one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or

                     (c)  they have a parent in common (who may be an adoptive parent of either or both of them).

For this purpose, disregard whether an adoption is declared void or has ceased to have effect.

Same Sex Relationships

Note in particular s 4AA(5)(a) Family Law Act 1975 (Cth) above which clearly states that two people of the same sex can be classified as being in a de facto relationship. This means that if a de facto relationship between two men or two women breaks down, the Family Law Act 1975 (Cth) may bring about the same rights and responsibilities for the parties as it would for heterosexual partners, for example one man may have to pay maintenance to another. So the question of "am I in a de facto relationship?" is definitely not limited to relationships where the partners are of opposite sexes... the law will apply equally to homosexual relationships.

Seek Legal Advice

If you are in a de facto relationship, there may not be any real implications for you unless the relationship ends, in which case other sections of the Family Law Act 1975 (Cth) and other laws and regulations may apply. One way to control the way the law interacts with your relationship, in particular if it ends, is by drafting a "Binding Financial Agreement", otherwise known in this case as a "Cohabitation Agreement" or a "De Facto Relationship Agreement".

A Binding Financial Agreement will set out the rules of your relationship when it comes to ownership of property and other issues too. You should speak to your solicitor about drafting such an agreement, as aside from the Family Law Act 1975 (Cth) making it compulsory for parties to a Binding Financial Agreement to seek legal advice before signing, there are many issues that you may not have considered that really ought to be included in such an agreement.

This website contains general information only. This site does not contain any legal advice. If you require legal advice, contact an Australian Legal Practitioner.