An increasing number of couples are choosing to live together in a domestic relationship prior to marriage. These couples are called ‘de facto’ relationships for the purposes of family law proceedings. In many ways de facto couples are treated in the same way as married couples. Property and parenting proceedings are dealt with according to the same legal principles and this reflects the idea that marriage is no longer a requisite for having a legitimate relationship.
The key difference between de facto and married couples is that with regard to the latter there are often disputes about whether or not the relationship existed, when it began and how long it lasted. These issues are not relevant for married couples as a marriage certificate is taken to be evidence that there was a relationship.
If the Court does not recognise that there was a de facto relationship or that it didn’t last for the requisite time period, then you may not be eligible to apply for property orders under the Family Law Act 1975 (Cth) (‘FLA’).
Am I in a de facto relationship?
In non-legal terms a de facto relationship is one where two people are in a domestic partnership. In legal terms, a de facto relationship is where two people are in a relationship as a couple living together on a genuine domestic basis.
If you live with your partner and consider that you have created a life together as a couple then it is likely that you are in a de facto relationship. No one factor is determinative and the court will look at any or all of the following factors under s 4AA(2) to determine whether you are in a relationship as a couple:
(a) the duration of the relationship;
(b) the nature and extent to which you have lived together;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between you;
(e) the ownership, use and acquisition of your property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
It is not necessary to be living together ‘full-time’ to be in a de facto relationship but it is important to recognise that dating someone is not the same as being a de facto relationship. The distinction between dating and being de facto partners is that the latter involves a commitment by both parties to a shared life together.
There is no distinction between homosexual and heterosexual relationships for the purposes of resolving a de facto dispute. Prior to the passing of same sex marriage laws in Australia the de facto jurisdiction of the court was the main arena for resolving separation disputes for same sex couples.
It is important to remember that every case will be determined on its own facts. No two relationships are the same and the court has to look at the specific circumstances of your case in order to determine whether or not they have jurisdiction.
Did my relationship last for two years?
While it may feel like a petty argument about when you started your relationship this issue can have important repercussions on the family law proceedings. The date a relationship started and ended can impact whether or not the FLA applies. If the relationship was less than two years then you will not attract the jurisdiction of the FLA unless there is a child of the relationship or it was registered under the relevant state or territory legislation.
The two year time period can be made up of aggregated periods of time if you have separated temporarily before resuming the relationship. However, it must be shown that the separate intervals of the relationship lasted for a period of at least two years when taken together.
There is a two year limitation period within which you have to bring an application to the Court. The period starts from the date of final separation. It is possible to bring an ‘out of time’ application but you have to prove that you made a substantial contribution to the property and would suffer significant hardship if the court did not exercise its jurisdiction.
While it is possible to bring an out of time application there is no guarantee that you will be successful and it will incur extra costs if you engage a lawyer to act on your behalf. For these reasons it is important that you act as soon as possible after your relationship has ended to ensure that you do not miss out on having your dispute resolved under the FLA.
The information provided is a general overview that is not intended to be taken as legal advice. It is a good idea to seek legal advice if you are thinking about applying to the court so that you can get an expert opinion on your personal situation.