De facto relationships – are you in or are you out?

What is a de facto relationship?
In the relevant legislation the term “de facto partner” is a reference to 1 or 2 persons who are living together as a couple of a genuine domestic basis, but who are not married to each other or related by family.

In determining whether two people are living as a couple on a ‘genuine domestic basis’ regard will be had to:-
• The nature and extent of their common residence (it is important to note here that two persons are not regarded as living together only because they share a common residence);
• The length of their relationship;
• Whether or not a sexual relationship exists or existed;
• The degree of financial dependence or interdependence, and any arrangement for financial support;
• Their ownership, use and acquisition of property;
• The degree of mutual commitment to a shared life, including the care and support of each other
• The care and support of children
• The performance of household tasks
• The reputation and public aspects of their relationship

The definition provided by the legislation enables the existence of a de facto relationship to exist between 2 people of the opposite sex, or between 2 people of the same sex.

Issues surrounding de facto relationships often arise in two areas of law:

1. Family Law – where there is acceptance of an existing de facto relationship – and the parties are attempting to split their assets; and

2. Wills & Estate – where there is a dispute surrounding the actual existence of a de facto relationship at the date of death of one of the parties to the de facto relationship.

1. PROPERTY DIVISION WHEN THE DE FACTO RELATIONSHIP BREAKS DOWN

Commonwealth Laws
Since the 1st March 2009, new Commonwealth laws for the division of property for people in de facto relationships that break down were introduced.

What do the laws do?
These laws provide for de facto couples, when they separate, to obtain property settlements on the
principles that apply under the Family Law Act 1975 to married couples.

The laws enable the Family Law Courts to order a division of any property that the couple own,
either separately or together with each other. Superannuation that each partner has can also be split
(married couples have been able to split superannuation since 2002).

Spouse maintenance can also be ordered (not previously possible in Queensland).

2. FAMILY PROVISION APPLICATION & THE DE FACTO PARTNER
The most common type of “challenge” to a Will is a ‘Family Provision application’ (also called a
Testator’s Family Maintenance application).

Family Provision applications are made under the Succession Act which sets out the relevant principles that a Court will take into account when deciding whether or not a deceased person’s spouse,child or dependent, has or has not been provided with proper maintenance and support from the deceased person’s estate. ‘Spouse’ is defined to include de facto spouses.

What are the tests to be applied?
This is a two-fold test, which requires the Court to consider:
(i) Was the person (that is, the person bringing the application)
the de facto partner of the deceased (using the dot points mentioned above); and If, the person and the deceased were living together as a couple:
(ii)Was this for a continuous period of at least 2 years ending on the deceased person’s death?

Did a de facto relationship exist at the date of death?
Although parties may acknowledge that a de facto relationship has existed (at some point) between 2
people – a consideration of whether that relationship persisted to the date of death is sometimes a
question where the parties have very differing views.

In a 1989 case, the Court commented on the features of a de facto relationship as follows:
“There is, of course, more to the relevant relationship than living in the same house. But there is, I think, a significant distinction between the relationship of marriage and the instant relationship. The relationship of marriage, being based in law, continues notwithstanding that all the things for which it was created has ceased….But where one party determines not to “live together” with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the other party or the other to decide whether it should continue.”

Applying the above passage, Justice Duntey, in S v B [2004] QCA 449 at [48] states that:
“…A de facto relationship ends when one party decides he or she no longer wishes to live in the required degree of mutuality with the other but to live apart. It does not seem to me that it is necessary to communicate this intention to the other party providing the party that is desirous of ending the relationship acts on his or her decision…”

Therefore, please keep in mind that a break down of a de facto relationship is evidenced when:
• The parties cease to jointly wish to reside together on a genuine domestic basis;
• One party (first party) does not communicate this intention to separate from the other party (second party);
• The second party does not agree to the first party ending the relationship;
• The de facto relationship ceases even though one party is trying to save it.