Am I In A De Facto Relationship?

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Am I In A De Facto Relationship?

You may have wondered at some point, what is the definition of a de facto relationship?

A de facto relationship is the legal term for a serious ‘boyfriend’ or ‘girlfriend’.

Under family law principles, a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex.

Also, a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

 

What Is A De Facto Relationship?

The Family Law Act 1975 section 4AA says that two people are in a de facto relationship if the two people are not legally married to each other, 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.

 

Importance Of A De Facto Relationship

It is important to understand the family law principles of de facto relationships as you will know what to do in the event you separate from your partner.

You could potentially seek a property settlement from the Federal Circuit Court.

Alternatively, you could mediate an agreement between both of you about how your assets will be divided after separation.

This is a great way to save time and money.

You can then go to get independent legal advice from a family lawyer to make your agreement legally binding in the form of Consent Orders.

You may already have a binding financial agreement in place. That will mean your assets will be divided as per that agreement.

You can also make a Shared Parenting Plan, and as long as you follow the correct family law principles, this document could stand in court.

 

Can You Be Married And Have A De Facto?

In Jonah and White [2011] FamCA 221 (4 April 2011) the Judge noted that one can be legally married and also in a de facto relationship.

Things that help determine whether you are a de facto couple could be:

  • the duration of the relationship;
  • a common residence;
  • a sexual relationship exists;
  • the degree of financial dependence or interdependence;
  • the ownership, use and acquisition of their property;
  • the degree of mutual commitment to a shared life;
  • whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
  • the care and support of children;
  • the reputation and public aspects of the relationship.

 

In Spencer & Speight [2014] FamCA 436 a de facto relationship was found to exist when there had been no sexual intercourse. This case also shows that in some cases even if the de facto relationship has been less than 2 years the Court can find it appropriate to make orders for a property adjustment.r

Mr Spencer and Ms Speight gave different versions of events about if they had a sexual relationship. Mr Spencer alleged that they had a sexual relationship from June 2011 to June 2013. Ms Speight asserted sexual intercourse never occurred due to Mr Spencer’s “health difficulties. The

Mr Spencer alleged that they had a sexual relationship from June 2011 to June 2013.

Ms Speight alleged that they never had sex as a result of Mr Spencer’s health difficulties

The Court said that nevertheless, an “intimate relationship” existed as the parties shared the same bed for months and were affectionate towards one another.

“Intimate relationships between couples can be many and varied and do not need to include physical sexual intercourse to fall within the definition of a sexual relationship…each case will be determined on its own facts”.

 

Multiple Separations

The case of Hamblin & Dahl [2010] FMCAfam 514 (24 May 2010) helps us understand the family law principles taken into consideration when determining the length of a de facto relationship.

Between March 1994 and December 1998, and then again between April 2008 and October 2009, the couple were in a de facto relationship.

They disagree how they should categorise their relationship for the in-between years, other than from May 2006 to April 2008 when they agree that the applicant was in a de facto relationship with another person.

The relevant section of the Family Law Act 1975 reads s.90SB(a):

A court may make an order…in relation to a de facto relationship only if the court is satisfied that the period, or the total of the periods, of the de facto relationship, is at least 2 years;…

The question to the court was, if the same people commence a de facto relationship in the future, is it a separate de facto relationship?

In this case, there was a ten-year gap between the relationships.

After looking at the factors of the relationship, the court ruled that they would hear the matter as the total length of the relationship exceeded 2 years.

 

Time Limit On Property Claims

You must make an application for maintenance or property orders within 2 years of the end of a de facto relationship.

The court may grant ‘leave’ to apply out of time, however, this is an extra obstacle that you will have to overcome.

You will have to convince the court that hardship will be caused to either yourself or a child if the court didn’t grant you an extension.

 

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Hayder Shkara
Hayder Shkara
hayder@justicefamilylawyers.com.au

Principal of Justice Family Lawyers, a Sydney Law Firm specialising in Family Law Cases.

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