Whether a de facto relationship exists or existed can depend on what purpose the de facto status is being decided.
The criteria for a de facto relationship changes in various settings depending on whether the de facto status is being considered for the purpose of Family Law, Migration Law or Succession Law. For example, in the Federal Circuit and Family Court of Australia (“FCFCOA”), the Court applies the definition in the Family Law Act which appears in Section 4AA.
A person is in a de facto relationship with another person if:
- the persons are not legally married to each other, but this does not prevent a person from being legally married to someone else; and
- the persons are not related by direct lines of family descent or by adoption; 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 circumstances that may be considered by the Court include any or all of the following:
- the duration of the relationship;
- the nature and extent of the person’s common residence;
- whether a sexual relationship exists;
- the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
- the ownership, use and acquisition of their 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 of children;
- the reputation and public aspects of the relationship.
No particular finding in relation to any of the above circumstances 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 has discretion to consider all the circumstances of the particular case.
A de facto relationship can be between people of the same gender or different genders. A person can be married to one person, but in a de facto relationship with another person. A person can also be in more than one de facto relationship.
Section 90SB of the Family Law Act applies to all de facto financial cases. The legislation requires that the relationship must have been of at least two years’ duration for proceedings to be brought. If the relationship is less than two years, then proceedings may only be instituted if:
- there is a child of the relationship, or
- the applicant made substantial contributions to property such that serious injustice would be caused if the proceedings were not permitted to proceed, or
- the relationship is or was registered under a prescribed law of a state or territory.
For the purpose of Succession Law in NSW, a person is not required to be in a relationship for 2 years to be considered de facto. Similarly, Migration Law in Australia does not have a prescribed minimum period to be considered de facto.
In making an application for property settlement or spousal maintenance, family law legislation applies geographical limitations on applicants. It is required that either:
- both parties must be ordinarily resident in a participating jurisdiction (e.g. NSW) when the relationship breaks down, or
either or both of them are ordinarily resident in such a jurisdiction at the date the application is made, and:
- the parties have been ordinarily resident in such a jurisdiction for at least one third of the relationship; or
- the applicant has made substantial contributions in the jurisdiction.
In NSW, de facto relationships can be registered at any time subject to a 28-day cooling off period. Similarly, the end of a de facto relationship can be registered by either person in the relationship provided that they serve notice on the other party.
To apply to register a relationship in NSW both partners must be:
- over 18 years of age;
- not married to each other or anyone else;
- not already in a registered relationship under this Act or in another state or territory in Australia;
- not in a relationship with another person; and
- not related by family.
The requirements for registration can vary between the States and Territories.
If you require advice in relation to de facto relationship law, for example, you are living with someone else and you are uncertain about your rights, Dorter Family Lawyers and Mediators are expert family lawyers who specialise in all areas of family law and can assist. Please contact us on (02) 9929 8840.