When does a relationship become a de facto relationship?

Many Australians believe a relationship only becomes a de facto relationship after living together for two years. That is a common misconception in family law. The legal position is more nuanced. The reality is far more complicated.

A relationship may be found to be de facto after a comparatively short period. Conversely, parties may remain in a relationship for many years and are never considered de facto at all.

It is important to understand the distinction because a de facto relationship may give rise to significant legal rights and obligations, including claims for property settlement and spousal maintenance.

Two separate questions

It is necessary to distinguish between two questions:

• Are the parties in a de facto relationship?

• If the relationship ends, does the Court have jurisdiction to make property settlement or spousal maintenance orders?

The commonly cited two-year period generally relates to the second question. It does not determine when a relationship becomes de facto.

What is a de facto relationship? 

Under the Family Law Act 1975 (“the Act”), a de facto relationship exists when two people, who are not married to each other and are not related by family, live together as a couple on a genuine domestic basis. 

No single factor determines whether that test is satisfied. The Court considers the relationship as a whole, including: 

·         the duration of the relationship 

·         the parties’ living arrangements 

·         the degree of financial dependence or interdependence 

·         the ownership, use and acquisition of property 

·         the degree of mutual commitment to a shared life 

·         whether the parties have children 

·         how the relationship is presented to family, friends and the broader community 

·         whether the relationship has been formally registered 

Importantly, no single factor is decisive. The Court can give different weight to different aspects of the relationship.

There is no minimum time requirement

The duration of a relationship is relevant, but it is not determinative of whether a de facto relationship exists. Many people are surprised to learn that a relationship can be de facto prior to the two-year mark.

The Act does not impose a minimum period before a relationship can qualify. A relationship lasting only a matter of months may satisfy the test, while a relationship lasting many years may not.

When long relationships were not de facto

A lengthy relationship does not automatically create de facto status.

In Jonah & White [2011] FamCA 221, a couple maintained a relationship for 17 years, yet the Court found they were not in a de facto relationship. The parties spent limited time together, the relationship lacked public recognition, and one party continued living with their spouse and children.

In Regan & Walsh [2014] FCCA 2535, the parties shared accommodation on and off over more than six years. Despite this, the Court found there was no de facto relationship because there was no joint property ownership, no meaningful financial interdependence and no mutual commitment to a shared life.

Other cases have reached similar conclusions where couples dated exclusively for many years but could not demonstrate a genuine commitment to building a shared life together.

When shorter relationships were de facto

By contrast, Courts have recognised de facto relationships after relatively short periods.

In Cham & Sha [2015] FamCA 355 the male partner Mr Sha remained married and primarily living with his wife throughout an extra marital relationship lasting approximately 18 months. The Court found a de facto relationship existed where the parties shared a home, had shared accounts and documents linked to the shared address, and conceived a child together through IVF.

This decision demonstrates that the quality and nature of the relationship matter more than the relationship duration.

Dispute about when the relationship commenced

Parties may agree that they were in a relationship but disagree about when it became de facto. This commonly arises where a relationship begins casually and becomes more committed over time. 

In Newland & Rankin [2017] FCCA 210, the parties had been romantically involved for several years. However, the Court found the de facto relationship only commenced once one party moved in permanently, became fully committed to the relationship and the parties began living a genuinely shared life. The earlier periods were regarded as intermittent and casual.

The significance of the two-year period

The two-year period becomes important when determining whether the Court can make property or maintenance orders after separation.

Generally, a person can bring a claim if:

• The relationship lasted at least two years

• The parties have a child together

• One party made substantial contributions and serious injustice would result if no property or maintenance order were made

• The relationship was formally registered

This is why the statement "we weren't together for two years” does not necessarily prevent a claim being made

A child does not automatically create a de facto relationship

The fact that the parties have a child together does not, in itself, establish that they were in a de facto relationship. 

The Court must first be satisfied that a de facto relationship existed. In the decision of Ricci & Jones [2011] FamCAFC 222, a couple had a child together but had never lived together. The Court found no de facto relationship and dismissed the property claim.

Time limit after separation

An application for property settlement or spousal maintenance arising from a de facto relationship must be commenced within two years after separation. A party who seeks to commence proceedings outside that period requires the Court’s permission. 

It is therefore important to identify the date of separation.

Key considerations

• There is no single date or event that automatically causes a relationship to be de facto.

• The Court looks at the whole relationship and asks whether the parties were living together as a couple on a genuine domestic basis.

• Shared finances, living arrangements, mutual commitment, plans for the future and the way the relationship is presented to others can all be relevant.

Parties may have different understandings of their relationship, and the Court may later characterise the relationship differently from either party’s understanding or expectation.

What feels like a casual arrangement to one person may later be viewed very differently by a Court.

Anyone who is considering living with a partner, purchasing property jointly, combining finances or making significant long-term commitments should obtain advice about the potential legal consequences.

Contact Fiona Hoad and the experienced family law teams at Bartier Perry for tailored, practical advice specific to your personal circumstances.

Author: Fiona Hoad

 

This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.