Debunking the Myths – De facto Relationships!
I have had a long running debate with a friend over what constitutes a ‘Defacto Relationship’. Now I am a family lawyer who works with relationships of all kinds day in and day out so I would like to think that I know the answer, but this friend is forever telling me I don’t! And while I know I am right, this debate always reminds me of just how confusing the law that relates to Defacto relationships really is.
So what is a De facto relationship?
To answer this question you first need to understand who or why it is being asked. I say that because if you are trying to understand whether a relationship is considered to be a ‘Defacto’ relationship for the purposes of the Family Law Act (Cth) 1975 (you might have separated and have property to divide for example) the answer will be very different than if you are looking at Immigration Law or even dealing with Centrelink and other Government Departments.
The challenge is that depending on the area of law you are dealing with, the answer to this question can be very, very different. I am a family lawyer so will focus on what is considered a ‘Defacto Relationship’ when it comes to the Family Law Act.
De facto Relationships and the Family Law
There are generally two main types of relationships that are governed by the Family Law Act – marriages and de facto relationships.
A marriage is perhaps the easiest to define and understand as a married couple will have a certificate that evidences the day on which they entered the legal union of marriage. You are either married or not – you can’t be ‘sort of married’.
De facto relationships are more difficult as two parties to a relationship can see it in a very different light. What one person considers to be a committed relationship almost like a marriage (albeit without the certificate and ceremony) the other can consider an uncommitted relationship, or not even a ‘relationship’ at all.
Where the presentation of a marriage certificate is enough to establish that you were married and thereafter enliven the necessary sections of the Family Law Act that might relate to the division of your property, the difficulty with de facto relationships is that there is very rarely such clear evidence of an intention to enter into a committed relationship. Often de facto relationships grow and change over time. It can sometimes be very difficult after a separation to look back in time and pin point the exact moment that you consider your relationship went from just ‘a relationship’ to a committed de facto relationship. In some states in Australia you can ‘register’ your de facto relationship but this, in practice, seems uncommon.
The Legal Test- the place to start
The general legal test for determining whether a couple are in a de facto relationship or not is whether you have been ‘living together on a genuine domestic basis’ for more than 2 years.
Sounds very fancy, of course, and the terms ‘genuine domestic basis’ are broad brushed and intended to refer to the many varied types of relationships that exist in our society. There is a list of matters that will be considered to determine if a relationship is a ‘de facto’ relationship including:
- The length of the relationship
- Whether the couple were living together
- Whether a sexual relationship existed
- The financial arrangements that were in place
- The way the couple owned and used their property
- The degree of commitment to a shared life
- If the relationship was registered
- The care arrangements for any children
- The couple’s reputation and public aspects of their relationship
The ‘two-year rule’ for de facto relationships
Once you have established that a relationship is a ‘de facto relationship’ you then need to show that it lasted more than two years before the Family Law Act can assist you. In other words, unless you were living together as a couple, ‘on a genuine domestic basis’, for at least two years, it is unlikely you will be able to pursue a property settlement – I call this the ‘two-year rule’.
There seem to be many misnomers about the required length of a de facto relationship when it comes to Family Law. My friend that I mentioned that likes to debate- this is the bit we argue about! He is absolutely convinced that after six months the family law will take effect. This is simply not the case…. (save for two exceptions below).
There are two main exceptions to the two-year rule:
- There is a child of your de facto relationship; or
- One of you has made such a significant contribution to the assets of the relationship that it would be unjust if Orders were not made. An example of this might be that the relationship lasted only eighteen months but one party made a significant lump sum payment, say $100,000, to reduce the other spouse’s mortgage. In this circumstance it may be appropriate that Orders are made to divide the existing property between the couple even though their relationship did not meet the usual two-year threshold.
Establishing that there was no relationship
During a difficult separation there can be benefits for a party to a de facto relationship to try and establish that there was no de facto relationship at all – this means that the Family Law Act would not apply and that couple may not be able to seek a division of their financial affairs in the usual way. If you consider yourself to be in this category you will need to seek specific advice from a specialist Family Lawyer as the process of proving or even disproving a De facto relationship can be an expensive and burdensome one.
Your relationship type and the law
Generally the law is the same whether you are married or in a de facto relationship:
- When it comes to your children, it does not matter if you are married or in a de facto relationship – the law is the same.
- When considering your financial affairs, if you are in a de facto relationship you need to establish that is lasted more than two years and then the law applies to you in almost an identical way as it does for married couples.
- If you were in a de facto relationship for less than two years you should seek legal advice from a Family Law specialist specific to your circumstances.
A few other myths
In my time as a family lawyer I have heard a few funny things so here are a few other ‘myths’ to ignore when it comes to de facto relationships-
“It’s always 50/50 right?”
When it comes to the division of your property, there is no automatic 50/50 rule (and this applies for married couples as well)
“But I paid for everything so they won’t get anything will they?
When it comes to the division of assets and income at the end of a relationship, a whole lot of things are considered to work out how to justly divide things between a couple. This is a much broader consideration that just who earned money or paid for things. The legal process will also consider the role of each person, whether they were parents, what they did to assist the family and a whole range of other matters.
“I get to keep what I had at the beginning, right?”
Hmmm… Sometimes… and other times you may not. Again, it will depend on a large number of different facts so it is always worth sitting down with a specialist family lawyer to understand how the law might apply in your circumstances before you start trying to sort too much out yourself.
Written by Clarissa Rayward for Families Magazine