Under the Family Law Act 1975 a “De facto Relationship” is defined as a relationship where two people (they can be of the same sex), are not legally married to each other or related by family, and having regard to all the circumstances of their relationship, have a relationship as a couple living together on a genuine domestic basis.
To determine if persons have a relationship as a couple the legislation goes on to state that many circumstances can be taken into consideration and that it is at the discretion of the court as to how much weight is placed on each of the circumstances (if at all).
Some things that are considered include the duration of the relationship, the nature and extent of the common residence, whether a sexual relationship exists, the level of financial interdependence, and the ownership, use and acquisition of their property.
No finding of any circumstance is said to be “necessary” to determine that a de facto relationship exists. As an example, this means that depending on the facts of a case, a couple that do not have a sexual relationship can still be found to be de facto depending on the other circumstances of the relationship.
Once a de facto relationship has been established it is necessary to determine if the length of that de facto relationship gives rise to the court being able to intervene or “take action” regarding the division of matrimonial property.
It is at this time that we apply the rule that a de facto relationship needs to be of at least 2 years duration for the court to have the power to resolve the division of property in accordance with the Act. The court can disregard the 2-year requirement if there is a child to the relationship, or if the person seeking a declaration that a de facto relationship exists, has contributed to the relationship to such an extent that not invoking the power of the court would result in a serious injustice.
If you have questions as to whether you are in a “De facto Relationship” and what this might mean for you, contact one of our Family Lawyers for advice on your specific circumstances.
