Understanding De Facto Relationships under Australian Family Law - Dhillon Legal
Keywords: De facto relationship, Family Law Act 1975, threshold requirements, coupledom, relationship registration, constructive trusts, resulting trusts, Dhillon Legal, Melbourne, Australia.
What is a De facto relationship
De facto relationships are treated similarly to marriages under Australian family law. If you are in a de facto relationship or are unsure whether your relationship qualifies as one, this article will help you understand the factors the court considers and the differences between a de facto relationship and an affair.
Under section 4AA of the Family Law Act 1975, the court considers several factors when deciding if a couple was in a de facto relationship. These factors include the duration of the relationship, the nature and extent of common residence, the presence or absence of a sexual relationship, financial aspects of the relationship, if there was a commitment to a shared life together, if the relationship was registered, how any children were cared for, and how other people saw the relationship.
In Jonah and White (2011) FamCA 221, Murphy J defined a de facto relationship as when two people have merged their lives so much that for all practical purposes, they were living as a couple. This is known as "coupledom."
However, not every de facto relationship falls under the ambit of the law. In accordance with section 90SB of the Family Law Act 1975, a court can only make an order regarding a de facto relationship if the individuals have been in a relationship for at least two years, there is a child of the relationship, the party making the application to the court has made a substantial contribution and a failure to make the order would result in serious injustice, or the relationship was registered.
If you are in a de facto relationship, you can register your relationship with the Registry of Births and Marriages. This will give you a certificate that can be used as proof of the de facto relationship and how long you have been together.
Historically, de facto relationships had complex legal issues surrounding resulting and constructive trusts between partners. However, legislative reforms were passed at both the state and Commonwealth level to resolve these issues. The Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 consolidated these reforms and treated issues related to children of de facto relationships and financial matters in the same way as it would for married couples.
It is important to note that there is a difference between a de facto relationship and an affair. In Jonah and White, Murphy J held that a relationship could not be described as a de facto relationship as it lacked the characteristic of coupledom, even though the parties had a long-standing and committed sexual and affectionate relationship which was exclusive with the exception of Mr White's relations with his wife. Murphy J accepted that Mr White could have been in a de facto relationship while being married. However, a number of other factors pointed in the opposite direction, such as maintaining distinct households, no relationship between Ms Jonah and Mr White's children, no significant time spent by the parties as a couple socially, and maintaining financial affairs separately (business, investments, bank accounts).
In conclusion, if you are unsure whether your relationship qualifies as a de facto relationship, the court considers several factors, including coupledom, duration of the relationship, and financial aspects of the relationship. If you need further advice or assistance regarding de facto relationships under Australian family law, contact Dhillon Legal, a family law firm based in Melbourne, Australia
