The number and duration of de facto relationships is steadily rising. Since 1 March 2009 de facto relationships have had the same status in Family Law as a marriage. Sometimes there can be a dispute between former partners about when the relationship commenced and when it ended. I represented a party in a matter where there was a lengthy dispute between a married couple where the wife asserted they had separated (but not divorced) 17 years earlier than when the husband asserted they had separated. Often the most significant consideration is cohabitation but that is not the only factor and that can sometimes be difficult to establish many years after the fact.
In late 2019 I successfully represented a party in a de facto case decided by Justice Macmillan in the Family Court. The case citation is (under the normal pseudonyms and not real parties names) Abalos & Halder [2019] FamCA 963.
LEGAL PRINCIPLES
A de facto relationship is defined in section 4AA of Family Law Act 1975 (Cth) as follows:
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5). Working out if persons have a relationship as a couple (2) Those circumstances may include any or all of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their 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.
(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
(4) A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
Although the Court may have regard to all or any of the factors listed in s 4AA of the Act, that list is also not exhaustive. As observed by Murphy J in Jonah & White (2011) 45 Fam LR 460 at [39],
“[t]he question of whether a de facto relationship exists is a determination of fact (albeit based on findings in relation to a non-exclusive number of statutory considerations)”, and each case must “... be assessed on its own facts and circumstances” (per Coleman J in Barry & Dalrymple [2010] FamCA 1271 at [237]). If the Court is to make orders for property settlement as the applicant seeks pursuant to s 90SB(a), it must be satisfied that the parties in this case have been in a de facto relationship for a total of two years.
If you have a dispute regarding the duration or existence of a de facto relationship, or any other matter regarding a de facto relationship, you are welcome to contact Marcus to discuss. Marcus will work with you to resolve your dispute in an efficient and pragmatic way.
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