For de facto relationships when the relationship starts and ends isn’t as clear as when you marry. For example, you don’t usually hold a ceremony to celebrate ‘moving in together’. While you can register your relationship by lodging a form with the Registry of Births, Deaths and Marriages in your state, you don’t need to, so it will ultimately come down to an agreement about when you started living together.
Here are three key considerations when determining whether your relationship is a de facto relationship at law.
#1 We’ve been together six months, so we are in a de facto relationship, right?
So you’ve been dating for a little while now and have taken the plunge to move in together. Your six-month anniversary of cohabiting ticks over. Your friends or associates say, ‘Six months – he/she can take half your property now . . .’ Right? No – not quite.
It’s a common misconception that if you have lived together with someone for six months that your relationship status is elevated to a point where one spouse might be able to claim property of their partner. While living together is one factor that is taken into account, the law is a little more complex than that.
What does the law say?
A de facto relationship exists where:
- two people have been living together on a genuine domestic basis for a period of two years; or
- two people have been living together on a genuine domestic basis for less than two years; however, they have a child together or have purchased property together.
The factors set out in the Family Law Act (section 4AA) that are taken into account when considering whether two persons have been living together as a couple on a genuine domestic basis are:
- the duration of the relationship;
- the nature and extent of their common residence;
- whether a sexual relationship exists;
- the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
- the ownership, use and acquisition of their property;
- the degree of mutual commitment to a shared life;
- whether the relationship is or was registered under a prescribed law of a state or territory as a prescribed kind of relationship;
- the care and support of children;
- the reputation and public aspects of the relationship.
#2 What if one party claims there was no de facto relationship?
Commonly from a separation perspective, a key issue can be whether a de facto relationship exists at law.
Take Suzanne, for example. Suzanne and Scott have lived in an on-again, off-again relationship for over five years. They met and started going out together in about 2012. They live together for periods at Scott’s parents’ home, they live separately at other times. They do not have any children. They have a sexual relationship. They present as a couple to their friends and family. Some years into their relationship they purchase a property together. They share equally in payments for mortgage. Scott pays for the rates and utilities. About six months after they purchased this property, Suzanne and Scott separate their living arrangements. They continue to see each other on and off, and maintain their sexual relationship. About a year after the purchase of the property Suzanne ends the relationship.
It is more than likely that a de facto relationship exists in these circumstances. Suzanne and Scott own property together, they present as a couple to their family and friends, they have lived with each other from time to time.
Whether a relationship exists at all is often argued about in matters with short relationships, particularly where one party to the relationship has significant assets in their own name and the existence of a de facto relationship may mean that a party possibly has a claim to those assets.
If it is difficult to establish on evidence that a relationship existed as set out above, the person who is trying to assert a relationship has little or no options under the Family Law Act.
#3 What if you are in a relationship with more than one person?
Meet Jasmine. Jasmine was in a long-term relationship with George for nine years. George says the relationship was only for three years. Jasmine had a property in her name at the beginning of the relationship. George also had a property in his name. During the relationship, George acquired two further properties in his own name. Jasmine and George lived together in George’s property. They presented to their family and friends as a couple. They attended family gatherings, weddings and funerals as a couple. Jasmine was able to produce invitations addressed to both of them throughout their relationship.
While they didn’t have any children, Jasmine and George both made contributions to the relationship. Jasmine managed the accounts and at times paid bills for George on his behalf. Jasmine assisted in finding the properties that George purchased.
Upon separation, George claimed that they did not have a de facto relationship. The basis of this claim was that they had no joint property and that George had been maintaining a relationship with another woman for the last three years. George and this other woman did not live together, though, because she was still married to another man.
Now this is quite a complex matter which all comes down to the evidence that both parties can produce about their relationship. They key point here, however, is that just because George was in a relationship with another person at the same time as his relationship with Jasmine, doesn’t mean that the de facto relationship between Jasmine and George didn’t exist.
Many cases seeking a property settlement involving a de facto relationship often also seek a declaration that the relationship existed at law, particularly where it is disputed by one party, or ended very close to the two-year period.
To get some clarity about the status of your de facto relationship contact us at our Brisbane or Maroochydore offices for an appointment with our family law team.