Given the recent political scandal (and because it is a question we get asked ALL the time), we thought de facto relationships would be an interesting topic to touch on in this post.
When are you in a de facto relationship?
A couple will be considered to be in a de facto relationship if:
- they are not married to each other;
- they are not related by family; and
- they have a relationship as a couple living together on a genuine domestic basis.
A de facto relationship can therefore exist between the same sex or different sex. It can also include situations where one party is already legally married to someone and in a relationship with another (i.e current political scandal).
There are many factors that a Court will consider in determining whether a couple is in a de facto relationship or just dating. The general rule is that a couple must be living together for 2 years. However, if:
- one person has financially supported the other; or
- the couple have had a child together,
then the couple may also qualify.
How a couple act in front of family and friends, and on social media is also a very important factor. The Court will accept evidence from family, friends and social media to refute or prove the existence of a de facto relationship.
Why does it matter?
Only couples who are married or in a de facto relationship (and not just dating) have rights to apply to the Federal Circuit and Family Court of Australia for:
- a property settlement (a share of the other persons property) and/or
- spousal maintenance (financial support from the other person).
Are there any real-life examples?
There are a number of cases on de facto relationships because it is one of the more complex areas of family law.
A recent 2017 case of Sha & Cham involved a situation where the husband was legally married to his wife and had a mistress (who started out as his sex worker). The mistress successfully claimed to be in a de facto relationship with the husband. The effect was that a Court ordered that the husband pay the mistress over $300,000 for a relationship of just over 1 year.
A contrasting case is Jonah & White where a Court found that no de facto relationship existed, notwithstanding the fact that the parties has been in a relationship for 17 years.
These cases highlight the complexity and sheer chaos that can be associated with family law, and particularly de facto relationship law. The Court battle of Sha & Cham spanned over almost 5 years (or to put it into context – 500% longer than the actual relationship between the husband and the mistress).
So, what is the take away message?
If you are starting a relationship (or currently in one) and you have property, then you should seek legal advice about how to keep that property in the event of separation.
Property can include:
- Real Estate
- Bank Accounts
- Household Furniture and Contents
- Interests in a Business or Trust
Would you like further information?
By Tegan Martens
Director & Principal Family Lawyer
The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. You should seek appropriate professional advice based upon your particular circumstances.