When does a fling become the real thing – the ins and outs of de facto relationships in Family Law.
Family Law in Australia recognises de facto relationships, which usually affords both parties the same legal rights and responsibilities as marriage, under the Family Law Act 1975 (Cth).
Common concerns for our clients are often what constitutes a de facto relationship, and when does a relationship transition into a de facto relationship.
A de facto relationship, in Family Law, arises when two people live together as a couple, without being related or married. The relationship does not need to be formally registered to give rise to de facto rights.
De facto relationships include same sex relationships and heterosexual relationships, and they can run concurrently with another de facto relationship and/or marriage. That is, a person can be in a marriage and de facto relationship, or two de facto relationships, at the same time in the eyes of the law.
Where there is contention about the existence of a de facto relationship, the Court will consider things such as:
- The length of your relationship, and how long you and the other person have lived together (if at all);
- The level of commitment and support shared between you both;
- Whether you shared finances (often through a “joint” account), or maintained separate finances and were financially independent of one another;
- The purchase of any property together or individually during the relationship;
- The existence of a sexual relationship;
- Whether there is a child of the relationship, and the care and support of that child;
- Any care or support of a child from a previous relationship;
- The manner in which household duties were attended to; and
- How your relationship was perceived in public (for instance, whether you attended functions as a “couple”).
For the Courts to be persuaded to make an Order adjusting property interests after the breakdown of a de facto relationship, at least one of the following three criteria will usually need to be met:
- A two-year relationship (with the “relationship” fitting the above criteria);
- A child of the relationship; or
- Where there have been substantial contributions by a party and it would be unjust for the Court not to make an Order. Often this is the case for parties who have made a significant joint purchase, such as a residential or investment property. Again, it is not necessary that the property be owned jointly, but there must be sufficient evidence that both parties contributed to the purchase.
Once a de facto relationship is established, an application can be made to the Court within two years of the date of separation. There are some circumstances where the Court will offer an exception to this time limit, however the safest option is to apply within two years of the breakdown of the relationship.
Provided that the Court is satisfied that a de facto relationship existed, a property settlement can occur which will result in a final division of assets, liabilities and financial resources.