It is easy to know if you are in a marriage. It is not so simple, however, to know if you are in a de facto relationship.
A question we get asked a lot here at Joss Legal is “When does a couple go from simply being ‘together’ to being in a de facto relationship?”
This blog post is intended to help you understand how the law in Australia defines and therefore identifies de facto relationships.
What is a de facto relationship?
With the marriage rate in Australia decreasing, more and more couples are opting to stay together without tying the knot. So, when do such couples become classed as de facto?
Ultimately where a de facto relationship exists is a question of fact for the Family Court of Western Australia to decide. To assist the Family Court with its determination, the Interpretation Act 1984 (WA) defines a de facto relationship as ‘a relationship (other than a legal marriage) between two persons who live together in a marriage-like relationship.[1]
But what is a “marriage-like” relationship?
If you are thinking this definition is quite vague, you aren’t the only one.
In Chief Judge Thackray’s view in the controversial case of Truman and Clifton [2010] FCWA 91, his Honour observed:
How then is a Judge expected to decide whether a relationship between a man and a woman (or indeed under this legislation same-sex couples) is “marriage-like” in circumstances where married couples straddle the spectrum from the deliriously happy to the homicidally estranged?[2]
His Honour is pointing here to the difficult task the Family Court is faced with by having to measure an unmarried couple’s relationship against the yardstick of a married couple’s relationship – indeed, a yardstick that comes in all shapes and sizes.
In his Honour’s view, there is a significant difference between merely “living together” and living in a relationship that is “marriage-like”.[3] Where the distinction lies will depend upon a detailed assessment (and weighing up) of certain indicative factors[4] listed below:
- the length of the relationship;
- whether the two persons resided together;
- the nature and extent of cohabitation;
- whether there is, or has been, a sexual relationship between the two persons;
- the degree of financial dependence or interdependence and any arrangements for financial support, between the two persons;
- the ownership and use of property (this includes both property owned individually and jointly);
- the degree of mutual commitment to a shared life (e.g. engagement);
- whether they care of and support children; and
- the reputation of the relationship.
Whilst none of the above factors are given more weight than the other, the Family Court have a wide discretion when determining whether a relationship is “marriage-like”.
Who can be in a de facto relationship?
The law does not put limits on who can be in a de facto relationship.
Provided you satisfy the ‘marriage-like’ requirement, two people of the same OR opposite sex can be in a de facto relationship.
Notably, there is no need for exclusivity in de facto relationship. In other words, two people can be in a de facto relationship even where one person in the relationship is legally married to, or in another de facto relationship with, a third person.
It is also important to note that two people can be in a de facto relationship irrespective of age – this means the persons to the relationship do not need to be an adult.
Two people cannot, however, be in a de facto relationship if they are related.
When does a de facto relationship end?
A de facto relationship ends when it ceases to have a “marriage-like” nature. Ultimately this is a question of fact, dependent on the individual circumstances of the case.
How does being in a de facto relationship affect my family law dispute?
Whether you are in a dispute with your ex-partner about property and/or parenting matters, if you are considered to be a de facto couple, you have access to the Australian family law system and thus the remedies contained therein.
In essence, status as a de facto creates entitlements to recognition of parentage and entitlements to partner maintenance and property settlement.
The legislation for de facto couples largely mirrors that for married couples. In effect, this has meant that despite couples not being married, they are treated as such for the purpose of resolving family law disputes.
There is one difference, however, on the entitlements of de facto couples as against married ones. At this point in time, de facto couples are not entitled to a superannuation split under the Australian family law legislation. This means that when resolving property disputes, despite your respective superannuations forming part of the asset pool (by being considered a financial resource) it is not an option for your ex-de facto partner to transfer monies from their superannuation into your superannuation, or vice versa. It must be noted, however, that the legislation pertaining to de facto couples and superannuation splitting is set to change very shortly.
Do de facto couples need to be separated before bringing an application for property settlement in the Family Court?
In Fabrizi and Grasso (Deceased) by his legal representative Grasso (Jnr) [2019] FCWA 176 (16 August 2019), Justice Duncanson considered a case where a de facto relationship had not ended before a party commenced proceedings in the Family Court for a property settlement under s 205ZG of the Family Court Act 1997 (WA).
Her Honour reviewed both the Family Court Act 1997 (WA) (i.e. the State Act) and the Family Law Act 1975 (Cth) (i.e. the Federal Act) before deciding that there was no limitation to the jurisdiction of the Family Court of WA to decide property settlements of de facto couples that have not separated.
In other words, de facto couples do not need to be separated in order to commence property settlement proceedings in the Family Court of WA.
The same cannot be said, however, for de facto couple property settlements in all other State jurisdictions.
Joss Legal is here to help
At Joss Legal, we advise those considering entering into, a de facto relationship to seek legal advice from one of our friendly solicitors before entering the relationship. Our advice will include whether to enter into a Binding Financial Agreement (BFA) to protect your current and future assets. Importantly, without a BFA, property settlements will be determined by the provisions of the Family Court Act 1997 (WA), where the Family Court has significant discretion in making their determination. Such discretion creates considerable uncertainty which can be avoided by entering into a BFA.
Importantly, BFAs can also be entered into during the de facto relationship and even after the relationship has ended.
If you have recently separated from your partner, and you consider yourself to have been in a de facto relationship, our experienced solicitors can assist you in determining whether you are entitled to a property settlement under the Family Law Act 1997 (WA) or indeed what rights you have when it comes to parentage.
[1] Interpretation Act 1984 (WA) s 13A(1). Please note, other jurisdictions outside of Western Australia define de facto relationships as ‘two people living (or have lived) together on a “genuine domestic basis”’: s 4AA of the Family Law Act 1975 (Cth).
[2] Truman and Clifton [2010] FCWA 91 [338] (Thackray CJ).
[3] Ibid [335]-[336], [338] (Thackray CJ).
[4] Interpretation Act 1984 (WA) s 13A(2).
Author – Isobel Holling