What is a De Facto Relationship?

When it comes to defining a de facto relationship NSW law follows the definition and principles set out in Federal legislation. For the purposes of the Family Law, the meaning of de facto relationship is a close personal relationship between two adults, who are living together, one or each of whom gives domestic support and personal care to the other and of course, that are not legally married. Clearly, the family law definition affords and attaches the same rights and obligations to same sex couples, who fall under the same provisions as de facto relationships do under the Family Law Act.

After separation, a member of a de facto relationship has the same rights and obligations as a party to a marriage that has broken down, in relation to parenting issues and the division of property. For that reason, once it is established that the person was a party to a de facto relationship, the person can apply to the Family Law Courts for Orders that bind the other party. Of course, in relation to parenting orders/child custody, it is not necessary that a relationship between the parents existed. All children are afforded the protection of the Family Law. 

Proof of a de facto relationship

In determining whether the couple were living in a genuine, domestic relationship, the Court takes into account several matters, such as:

1. The length of the relationship; 

2. To what extent and under what arrangements the parties lived together; 

3. Whether there was a sexual relationship; 

4. The financial dependence or interdependence of the parties;

5. The acquisition, ownership and use of property; 

6. The degree of commitment by both parties to a shared life; 

7. The care and support of children; 

8. The performance of household duties; and

9. How other people saw the relationship. 

But before making property Orders, the Court must be satisfied that: 

1. The couple had a child together; or

2. The couple lived together for at least two years; 

3. The applicant made substantial domestic or property contributions or cared for the other party’s child and injustice would result if an order were not made; or

4. That the relationship is or was registered under a law of a State.

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

In the matter of Jonah & White (2011) the main issue was whether there had been a de facto relationship between the parties in circumstances where one of the parties was married to another person but was having an affair over seventeen (17) years with the other party. 

His Honour Justice Murphy considered whether common residence is required in establishing whether the parties had a relationship as a couple living together on a genuine domestic basis, and took the view that the fact that parties live in the same residence for only a small part of each week does not exclude the possibility that they are “living together as a couple on a genuine domestic basis” and the maintenance of separate residences is necessarily inconsistent with parties having a de facto relationship. 

His Honour stated that it was clear from the statutory recognition that parties to a relationship can be married to other people but also be in a de facto relationship with one another. 

There were several circumstances pointing to the existence of a de facto relationship, including the long-standing nature of the relationship over 17 years, the parties maintained a consistent sexual relationship, the Respondent financially supported the Applicant for a number of years (up to $3000 per month for 11 years) and the Respondent contributed financially (a lump sum of $24,000) to the Applicant’s home. 

However, there were significant other circumstances that indicated that it was not a de facto relationship as contemplated by the Family Law Act. These included the fact that the parties maintained separate households and only saw each other for a few days every two to three weeks; the Respondent’s household involved the support of children with his wife; a lack of relationship between the Applicant and the Respondent’s children; a clandestine relationship where no time was spent socialising as a couple or with each other’s friends; and separate finances and property, where the parties did not pool resources.

Due to the general requirement that there be proof of a de facto relationship prior to approaching the Court for Orders, this threshold issue can sometimes stand in the way of parties who wish to seek relief from the Court regarding the division of property. Circumstances often arise where one party to the relationship resists the making of Orders by denying that the parties fall under the legal definition of a de facto relationship. 

When entering into committed relationships, people must remember that, despite a particular party’s intentions to not be in a relationship that would come under the ambit for family law legislation, if the other party approaches the Court for Orders, the Court may well find that a de facto relationship existed and for that reason, make Orders for the division or redistribution of the property and assets of the couple.

One reason that many couples do not get married is to be able to be together without the legal implications that come with a marriage, particularly if the parties decide to separate. It is therefore important to understand how the law treats the breakdown of a relationship once it is determined that the relationship falls under the legal definition of being “de facto”. 

Of course, it is also important to understand that, despite people’s intentions, a relationship that they considered to be casual and without legal implications can often be characterised as a relationship that comes under the jurisdiction of the Family Courts. Once some people realise that the breakdown of the relationship will now be treated almost identically to a marriage breakdown, they feel aggrieved that their chose to enter into an informal arrangement by not getting married, which they find to now only have almost the same legal consequences as though a marriage in fact existed.

The differences between the legal implications of the breakdown of a de facto relationship that the breakdown of a marriage are very limited. Therefore, for a more detailed understanding of how a Court deals with Applications for Property Orders and Applications for Parenting Orders/Child Custody can be obtained by understanding the law regarding De Facto Relationship Property Settlement and Child Custody.

The Family Law Division of Prime Lawyers is specialised in dealing with all aspects of any type of de facto relationship NSW wide; from negotiating Parenting Orders, to arguing over the existence of a de facto relationship to obtaining Property Settlements or Orders for the division of property through the Courts.

If you need assistance with a de facto relationship matter, our experts at Prime Lawyers – Family Law Division can help. Contact us to make an appointment with a family lawyer at your nearest Prime Lawyers office. 

Call today to speak with one of our Family Lawyers in Sydney, Parramatta, Chatswood, Sutherland or Wollongong.