Parenting
Debunking the myths -
Defacto 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 Defacto 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.
Defacto 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
"De facto relationships are more difficult as two parties to a relationship can see it in a very different light."
• 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
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Your Local Families Magazine – Brisbane Issue 11 - August/September 2015