Under Australian law, a de facto relationship means a relationship where you are living together ‘on a genuine domestic basis’.
Both heterosexual and homosexual couples can be in a de facto relationship.
A Court can find a de facto relationship even when one of the parties is legally married to someone else or in another de facto relationship.
The Court will consider the circumstances of the relationship to determine whether the couple are living together on a genuine domestic basis.
According to s4AA of the Family Law Act, several factors must be taken into account, being:
- The duration of the relationship;
- The nature and extent of their common residence;
- Whether a sexual relationship exists;
- The degree of financial dependence or independence, and any arrangements for financial support, between them;
- The ownership, use and acquisition of their property;
- Their degree of mutual commitment to a shared life;
- Whether the relationship has been registered;
- The care and support of the children;
- The performance of household duties; and
- The reputation and public aspects of their relationship.
All of the factors carry equal weighting and must be considered when making a determination as to whether a couple is in a relationship are not.
The Court will consider the factors as a whole in order to determine whether a de facto relationship exists.
There are two specific elements of that definition which require individual consideration.
Are you a couple?
The first of those is the concept of “a couple”.
For the purposes of the definition, “a couple” is constituted by two people, whether of the same or opposite sexes.
Are you living together?
The second specific element is the concept of “living together”.
In the case of Moby & Schulter (2010), the judge found stated that if a couple does not live together at any time, they cannot be seen as being in a de facto relationship.
However, how do you define “living together”?
The judge went on to state that a couple was not required to live together on a full-time basis.
There would have to be an element of ‘living together’, however, you would have to analyse each relationship on a case-by-case basis without circumscribing any particular factor.
Cases like Moby & Schulter help us understand the court’s view when it comes to determining the existence of a de facto relationship.