De Facto: A Threshold Question
By Andrea Bunn
14 October 2019
Many people think that you’re only in a ‘de facto relationship’ if you have lived with your intimate partner, under the one roof, for at least two years. Unfortunately it is not always that clear cut.
As a starting point, by definition, a court will consider a person to be in a de facto relationship with another person if, having regard to all the circumstances of their relationship, it is found that they are a “couple living together on a genuine domestic basis”. The meaning of this definition can be somewhat grey and ultimately subject to the discretion of the Court.
The Court will consider a variety of ‘circumstances’. For example:
Do you live with your partner?
If not on a full time basis, how often does your partner ‘sleep over’ at your place? Do they have a key? Technically you don’t have to “officially” move in with your partner to potentially satisfy the definition of ‘living together’. You can be in a de facto relationship and maintain two separate residence. The Court considers whether, by your conduct, you have “merged” your life with your partner such that, for all practical purposes, you are living together as a couple on a genuine domestic basis.
What is your financial relationship with your partner?
Do you share payment of bills, utilities and the weekly shop? Do you have joint or separate bank accounts? Are you saving money together to purchase property or go on holidays? Again, does your conduct suggest that you intend to “merge” your life with this person?
Level of intimacy
Though not determinative, the court may have regard to the level of intimacy in your relationship. A sexless relationship is not necessarily ‘damning’ if other ‘circumstances’ are sufficiently persuasive, though an intimate relationship alone is unlikely to satisfy the threshold. Likewise, a relationship that is not monogamous can still be de facto. You can be found to be in a de facto relationship whilst also married and / or in multiple de facto relationships at once.
Public recognition of your relationship
Public recognition of your relationship may also be persuasive for the Court. That is, do you and your partner socialise together? Attend family functions, go on holidays (with photos posted all over social media) and sign off Christmas cards together? Do you refer to each other as partners? Again, this factor alone may not be determinative, however when considered as part of the whole, the public reputation of your relationship may be the persuasive ‘last straw’.
These are just some of the circumstances the Court will consider when determining, on balance, whether a couple satisfy the definition of a ‘de facto relationship’ and the Court may attach differing weight to any circumstance(s) it deems appropriate.
Once the Court is satisfied that a de facto relationship exists, before it considers making any order in relation to your relationship (i.e. for the division of property) it needs to “check off” at least one of the following:-
- Is there a child of the relationship? or
- Is or was the relationship registered under a prescribed State or Territory law? or
- Is the aggregate total of your relationship at least 2 years? (On and off again relationships beware!) or
- Has one of you made a substantial contribution to asset(s) such that if the court did not make an order it would result in a serious injustice. For example, if you or your partner have contributed significantly to the acquisition and / or improvement of property.
Provided at least one of the above factors is ‘ticked’, there may well be a claim. There’s a lot to consider! De facto law is not just relevant for millennials either, baby boomers in their second or third relationship should keep these issues front of mind, especially when you’ve accumulated a decent asset and superannuation pool you’d ideally like to leave to the kids.
So, whether you’re at the start of you relationship and would like some advice about asset protection, or, at the end of your relationship and would like to know more about the road ahead, do not hesitate to contact a member of our Family Law Team for more information and assistance with your family law matters.