What is a De Facto Relationship? Legal Definition Explained

Are you wondering whether your relationship is a bona fide de facto relationship? 

While you may feel secure in knowing that de facto partners have the same rights as married couples, when things go south, you might find your partner claiming you were never in a de facto relationship to begin with. 

You might have been living together and in a relationship for more than two years, but that might not be enough for the law to recognise your relationship as a bona fide de facto relationship. 

So, how does the law define a de facto relationship? Let’s dive into the legal definitions and the possible complexities you might face when a de facto relationship ends. 

If you are dealing with the fallout of a de facto relationship or any other family law matter, contact our team of expert lawyers today. 

Defining a De Facto Relationship

 A de facto relationship is a partnership in which two individuals cohabit as a couple on a genuine domestic basis without being legally married. The recognition of a de facto relationship under Australian law can have significant implications for the couple’s legal rights and responsibilities, similar to those of married couples. 

Section 4AA of the Family Law Act 1975 sets out the meaning of a de facto relationship and says: 

(1)  A person is in a de facto relationship with another person if: 

(a)  the persons are not legally married to each other; and 

(b)  the persons are not related by family (see subsection (6)); and 

(c)  having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis. 

The actual meaning of the definition, whilst first appearing simple, can get complicated. 

So, what considerations constitute a ‘genuine domestic basis’? 

Section 4AA(2) of the Family Law Act 1975 sets out the criteria, namely: 

(a)  the duration of the relationship; 

(b)  the nature and extent of their common residence; 

(c)  whether a sexual relationship exists; 

(d)  the degree of financial dependence or interdependence and any arrangements for financial support between them; 

(e)  the ownership, use and acquisition of their property; 

(f)  the degree of mutual commitment to a shared life; 

(g)  whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship; 

(h)  the care and support of children; 

(i)  the reputation and public aspects of the relationship. 

This all sounds quite standard and reasonable, but where it gets tricky is determining how much consideration a judge may give to each of the criteria. A judge may give more weight to certain criteria given the particular circumstances of the case. 

If you are unsure of whether your relationship counts as de facto, our de facto relationship lawyers can help. Their comprehensive knowledge of past rulings can help them quickly determine if your relationship is de facto and help you prove it if necessary. 

Determining the Existence of a De Facto Relationship

 To better understand how the Court ascertains whether a couple lived together on a “genuine domestic basis”, let’s look at two past cases: 

Case Study: Jonah & White [2011] FamcA 221

In this case, there was a secret intimate relationship of 17 years, during which the Respondent was also married to another woman, whom he shared children with. The Applicant and Respondent travelled overseas together, and the Respondent contributed and financially supported the Applicant over 11 years. 

Despite these factors, his Honour Justice Murphy at paragraph [60] said ‘In my opinion, the key to that definition of being in a de-facto relationship is the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis 

The fact the parties had: 

1. kept their finances separate; 
2. each maintained their own household; 
3. had no evidence of a relationship between the applicant and the respondent’s children; 
4. had no mingling with each other’s friends as a couple; and  
5. did not spend time with each other’s extended families 

was enough to support the notion that there was no merger of lives or ‘coupledom’ between the parties to prove their relationship was on a ‘genuine domestic basis’. 

Despite it not being found to be the case in this case, you can be found to be in a de facto relationship even if you are married. Therefore, your wife/husband and mistress/paramour may both have a right to make a claim against you if your relationship breaks down.  

Case Study: Asprey & Delamarre [2013] FamCA 214

In this case, the judge did find that the parties were a de-facto couple on a ‘genuine domestic basis’.  

Despite conflicting evidence, her Honour Justice Cleary found there was a relationship of eight (8) years. The parties lived in separate houses (apart from a period of weeks after the birth of each of their children), and they had considered living together and undertook searching for a home. It was found that they both intended to spend time together as a family, just on their own terms. Both parties were self-employed and maintained separate bank accounts.  

When they were together, both parties shopped together, and at paragraph [56], the Judge says: “At no time were the parties indifferent to each other or their shared life”. They were both involved with the care of their two children and involved with the Respondent’s sons from his previous marriage. They spent time with each other’s families and held social events where they were known as a couple.  

In conclusion, her Honour Clearly J’s judgement referred to the “merger of two lives into coupledom” from Jonah and White (2011) 45 Fam LR 460 at [60] that allowed her to infer that the parties were able to demonstrate a relationship of mutual commitment to a joint life and the notion of coupledom that determined the parties were in fact in a relationship on a genuine domestic basis. 

Key Factors When Considering if a De Facto Relationship Existed

Based on our understanding of past rulings, the key de facto criteria are: 

• The duration of the relationship 
• The extent of shared residence 
• The existence of a sexual relationship 
• The degree of financial reliance or interdependence 
• The ownership, utilisation, and acquisition of assets 
• The level of mutual commitment to a shared life 
• The care and support of children 
• Public perception and visibility of the relationship 

It should be noted that the care and support of children in a de facto relationship play a significant role in determining the existence of such a relationship. This includes the daily care of the children, financial support, and involvement of both parties in the children’s lives. The reputation and public perception of a de facto relationship also form vital considerations, comprising the degree of mutual commitment to a shared life and the extent of public acknowledgment of the relationship. 

How to Prove a De Facto Relationship

Proving the existence of a de facto relationship can be challenging, as it often requires the presentation of various forms of evidence. To substantiate cohabitation, couples may provide joint bank accounts, shared bills, and statements from acquaintances and relatives.  

In Australia, the minimum duration of cohabitation required for de facto couples to demonstrate their relationship is two years without separation. So, if you and your partner separated for a few months and got back together, the clock would reset on your cohabitation. However, the presence of children or contributions to joint property may be enough for a Judge to overlook this requirement. 

To demonstrate shared financial responsibilities, couples can provide joint bank accounts and tenancy agreements as evidence. In cases where the existence of a de facto relationship is disputed, a comprehensive understanding of the legal requirements and presenting the necessary evidence is vital to protect your rights and entitlements. 

Rights and Responsibilities in a De Facto Relationship

 Financial Agreements and Property Settlements

Financial agreements and property settlements in de facto relationships are similar to those in marriages. Couples can enter into financial agreements before, during, or after the relationship, outlining the division of assets and liabilities, spousal maintenance, and other relevant matters. The Federal Circuit and Family Court of Australia can make orders concerning property settlement, spousal maintenance and other financial arrangements when a de facto relationship ends. 

To be valid, a binding financial agreement must: 

• Be documented in writing. 
• Be signed by both parties. 
• Each party must obtain independent legal advice from their own legal representative. 
• Each legal representative must sign a statement confirming they have provided the necessary advice. 
• A copy of the statement must be submitted to the other party. 

This ensures both parties fully know their rights and obligations under the agreement. 

Child Support and Parenting Matters

Children in de facto relationships have the same rights as children of married couples, including the right to care and support from both parents where it is safe for the child and the parents. The parent responsible for the care of a child is entitled to receive child support payments from the other parent in accordance with the ordinary statutory process. In the event of a parent’s death, children are eligible to receive a portion of the property in the absence of a will or challenge any will deemed to be unjust. 

Regarding parenting orders in a de facto relationship, the process is similar to that of married couples. If an agreement cannot be reached, a parent can apply to the Federal Circuit and Family Court of Australia for a parenting order under the Family Court Act 

In determining whether to grant a parenting order, the Court prioritises the child’s best interests. Factors considered include: 

• Maintaining established arrangements. 
• The relationship between the parent and the child. 
• The child’s safety. 
• The child’s wishes. 

Learn more about child custody in divorce and separation (which applies to de facto relationships). 

Are You in a De Facto Relationship? Get Legal Advice & Protect Your Future

While a de facto relationship can result from not wanting to formally define your relationship, knowing whether or not you’re legally in one is vital for protecting your rights and entitlements if the relationship breaks down. Due to the different ways couples operate and perceive their level of commitment, determining whether they have effectively merged their lives on a ‘genuine domestic basis’ comes with many inherent challenges. All of this reinforces the importance of engaging an experienced family law practitioner who can interpret the details of your relationships in consideration of past rulings, helping you determine if you are genuinely in a de facto relationship or not. 

At Doolan Wagner Family Lawyers, our specialist de facto family lawyers are standing by to help you navigate these complexities to get the best result. Reach out to our team today to discuss your case and how we can help you.