What constitutes a family has changed over the years.
Couples can be married or defacto but to the outside world the nature of their relationship may seem identical. Whereas married couples have a certificate proving the status of their relationship, proving a defacto relationship can be more difficult.
Section 90RD of the Family Law Act gives Courts the power to decide this issue.
There are three basic requirements contained in the Act:
- the persons are not legally married to each other; and
- the persons are not related by family; 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 Courts a wide discretion to decide whether or not a couple lived together on a “genuine domestic basis.
The Act sets out a list of factors to assist including:
- •the length of the relationship; (It must be two years or more in total but shorter periods can be added together)
- the nature and extent of their common residence; (Did the couple live together?)
- was there was a sexual relationship?;
- the degree of financial dependence or interdependence, and any arrangements for financial support, between them; (Financial interdependence can vary at different times. It doesn’t just relate to money but to mutual support)
- the ownership, use and acquisition of their property; (Did the couple buy or borrow to fund property jointly? Did they share what they owned separately?)
- the degree of mutual commitment to a shared life; ( The court has recognised that feelings wax and wane and parties may feel differently about the relationship at times but the important thing is that it must not be one-sided. There must be a joint commitment)
- was the relationship registered under a State or Territory law as a defacto relationship?;
- did the care and support of children occur?; (This doesn’t have to be biological children of the couple but can relate to stepchildren)
- the extent to which the couple are recognised publicly (this refers to the way the couple is seen in the outside world, by friends, family and acquaintances.).
Those factors are not the only things to be considered and the Court can consider anything else it regards as relevant when it considers “all the circumstances of their relationship”.
Likewise, the absence of any individual factor does not mean that the relationship will not be characterised as a defacto relationship. For example, in a recent decision, a defacto relationship was found to exist although it was conducted at two different residences, the couple had periods of sexual inactivity and both had relationships with other partners for some of the time.
The Court can also find that a defacto relationship existed even though:
- one or both parties were married to other persons during the relationship,
- a person was in more than one defacto relationship at the same time.
If the Court finds that a defacto relationship existed it can determine the start and end date of the relationship.
Whether parties are in a defacto relationship can have important consequences. It determines what type of pension or benefit a person is entitled to and whether there is a right to financial support for a defacto partner and/ or their children after the death of the spouse. Importantly, it determines whether the Family Courts have the power to make a property or spousal support order for unmarried couples.
Prepared by Andrew Crooke
This publication has been carefully prepared, but it has been written in general terms and should be viewed as broad guidance only. It does not purport to be comprehensive or to render advice. No one should rely on the information contained in this publication without first obtaining professional advice relevant to their own specific situation.