By Briana Kotzapavlidis

5 April 2017

It goes without saying that modern day relationships can be complicated. How do you know if you are in a casual relationship or if you have embarked upon something more serious (perhaps without realising)?

To be eligible to seek property or financial orders as a de facto under the Family Law Act, the parties must have been “in a relationship as a couple living together on a genuine domestic basis”. In assessing whether parties are in a de facto relationship, the Court must have regard to all of the circumstances (none of which are, of themselves, necessary or determinative). The relevant circumstances include:-

  • the duration of the relationship;
  • the nature and extent of their common residence;
  • whether a sexual relationship exists;
  • the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
  • 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; and
  • the reputation and public aspects of the relationship.

The question of what constitutes a de facto relationship is a difficult one. According to recent case law, parties who maintain separate homes but spend regular overnight time together can be considered to be living together on a genuine domestic basis as a de facto couple.

The Court will consider the extent to which the parties have intermingled their finances and/or provided financial support to one another, including whether the parties have shared expenses, such as dining out, holiday expenses and buying groceries. The Court looks at the manner in which the parties presented themselves and their relationship to friends and family, including how they describe one another (for example, “my partner” or “better half”) and whether they celebrated birthdays and special occasions with their respective families. The Court will have regard to other circumstances, such as the nature of the parties’ sexual relationship (even if not monogamous) and whether the parties made provision for one another in their respective Wills in determining whether the parties were in a de facto relationship.

It is a matter for the Court to decide, at its discretion, if a collection of these factors has resulted in the parties living as a couple on a genuine domestic basis, such that one party might be entitled to a property settlement (or maintenance) from the other party. Each and every relationship is different and turns on its own facts.

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