What is A De Facto Relationship?
There can be a lot of uncertainty around whether a couple is in a de facto relationship. A person is in a de facto relationship with another person (irrespective of gender) if they;
- Are not legally married to that person;
- Are not related by family;
- have a relationship with that person as a couple living together on a genuine domestic basis, having regard to all the circumstances of their relationship.
What does “living together on a genuine domestic basis” mean?
Living together on a genuine domestic basis does not necessarily mean living together all of the time. A de facto relationship might involve a couple living together for no more than half of the time and possibly less than half of the time.
To be in a de facto relationship a couple must have merged their lives to the extent that they are for all practical purposes living together as a couple of a genuine domestic basis. A couple who are merely dating are not in a de facto relationship.
Some of the circumstances to be taken into account in assessing whether a de facto relationship exists or whether there is a mutual intention to share a life together are how long a couple has lived together, whether there is a sexual relationship and the degree of financial dependence/independence between them. Other factors include the care and support of children and the ownership, use and acquisition of property.
When can a de facto partner make a claim against the other partner’s property following a separation?
A claim can be made if the couple has been living in a de facto relationship for a period of more than two years or for a period of less than two years where:
- The couple have a child together; or
- A substantial contribution has been made by one of the parties.
Our advice for de facto relationships
It is advisable for those considering entering into a de facto relationship to seek legal advice before they enter the relationship, including whether to enter into a Financial Agreement. Without a Financial Agreement, property settlements following the breakdown of a de facto relationship are determined by the provisions of the Family Law Act. There is a significant amount of discretion and uncertainty in a property settlement under the Family Law Act and a Financial Agreement can provide couples with certainty.