WHAT IS A DE FACTO RELATIONSHIP?

Often I am asked by client’s what constitutes a de facto relationship.  When people start new relationships they are sometimes concerned about protecting their assets, especially if they have been through the wringer of a family law bust up.

So, what is the definition of a de facto relationship?  Do you have to be living together to be in a de facto relationship?  The answer is, not necessarily.  Section 4AA of the Family Law Act defines a de facto relationship.  It says that a person is in a de facto relationship if:

• The persons are not legally married to each other; and
• The persons are not related by family; and
• Having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

The Act also provides certain indicia that should be taken into account in determining whether a de facto relationship exists.  These include:

• The duration of the relationship;
• The nature and extent of a common residence;
• Whether a sexual relationship exists;
• The degree of financial dependence or interdependence, and any arrangements for financial support;
• The ownership, use and acquisition of property;
• The degree of mutual commitment to a shared life;
• Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
• The care and support children;
• The reputation and public aspect of the relationship.

The Act makes it clear that no particular finding in relation to any circumstance listed above is to be regarded as necessary in deciding if a de facto relationship exists.  A court can give weight to any matter as may seem appropriate in making its decision.

 In a recent case, the Family Court of Australia was asked to make a declaration that a de facto relationship existed.  The facts of the case were as follows.

1. The parties met in October 1997.  At that time, the respondent was still married to his then wife.
2. The parties began seeing each other and began a sexual relationship in January 1999.
3. In November 2002 the respondent separated from his wife and he moved into a villa.
4. The parties did not, at any time during the relationship maintain a common residence but after November 2002 the applicant commenced going to the respondents villa every day.  The court found that the parties spent significant time together, mainly at the respondent’s residence.
5. There was evidence and the court accepted that the respondent had provided significant financial support to the applicant including paying her rent and other expenses.
6. The respondent had significant assets during the relationship but the applicant had very little by way of assets.
7. The parties regularly took holidays together and the applicant proudly wore on her wedding ring finger a ring the respondent had given her.
8. The applicant cooked and cleaned for the respondent and his children.
9. The parties were publicly open about their relationship and attended public functions together.
10. The parties ended their relationship in September 2009.

The applicant sought a declaration that the parties were in a de facto relationship.  The respondent initially denied the existence of a relationship but at the commencement of the hearing conceded a relationship beginning in 2006.  There was evidence presented to the court that in 2006 the parties had commenced the process to obtain a spousal visa with the respondent as the applicants sponsor.  The respondent’s case was that what he had told the Department of Immigration and Citizenship, relating to the application for a spousal visa was false.

The court found, that notwithstanding that they had maintained separate residences, after taking into account the indicia outlined in the Act, a de facto relationship existed between November 2002 and September 2009.

The respondent had clearly believed that by not setting up a home together he would be safe from any claim made by the applicant.  However, as can be seen by this case, it is only one of a number of matters to be considered as to whether a de facto relationship existed.

There are other examples of cases which have been decided in the court regarding the division of property following a relationship breakdown that involve parties who have not shared a common residence.  These cases generally look at a number of aspects of the relationship including when the parties have provided financial and emotional support to each other.  In these cases the relationship has been described as a “close personal relationship” which has been found to be sufficient to ground a claim for a division of property under the Act.