De Facto De Jure: Might You Be In A De Facto Relationship?

‘To avoid a divorce, don’t get married’ - but unless you intend to resile yourself to a life of solitude, it may not be quite so simple.

Close relationships are good for us, but they are often complicated and dynamic. Nothing dampens the joy of blossoming new romance like the dreaded “What are we? Where is this going?”.

While the choice to get married is a clear and decisive step, the choice to enter into a de facto relationship is often less clear, especially when pre-occupied with the joys of moving in together, buying a home, or welcoming a baby.

You may be in a de facto relationship and not even know it.

What Is A De Facto Relationship?

Depending on who you ask, and why you want to know, the answer can differ.

For family law purposes, a de facto relationship has a legislative definition.  

In Western Australia, a de facto relationship means a relationship between two people, who are not legally married to each other, living in a marriage-like relationship. ^[1]

Everywhere else in Australia, a de facto relationship means a couple living together on a genuine domestic basis, who are not legally married to each other and, are not related by family. ^[2]

Determining whether a relationship between a man and a woman (or same-sex couples) is “marriage-like” in circumstances where “married couples straddle the spectrum from the deliriously happy to the homicidally estranged ^[3], can indeed be difficult.

But I’m already married to someone else…

A de facto relationship can exist even if you are legally married to someone else. ^[4]  A person can also be in more than one a de facto relationship at a time. ^[5]

We Don’t Even Live Together!

Whether a relationship meets the definition is a question of fact to be holistically assessed according to the relevant legislation.

In Western Australia, the factors to be considered are found in section 13A(2) of the Interpretation Act 1984 (WA).

Everywhere else in Australia, relevant factors are set out in section 4AA(2) of the Family Law Act 1975 (Cth).

There is no one essential marker which determines whether a couple is in a de facto relationship. ^[6] As noted by the Supreme Court of Western Australia Court of Appeal in the 2018 decision of G v O, “widely varying conceptions of marriage present challenges for the application of the criterion of being ‘marriage-like’ in determining whether a relationship falls within the definition of a de facto relationship”. ^[7] The subjective intentions of the parties (or one of them) is not decisive. A de facto relationship can exist even where parties do not share a common residence.

So What If We’re De Facto? We Keep Everything Separate

During a break-up, your heart may not be the only thing that is vulnerable.

A party to a de facto relationship has two years from the end of the relationship to bring a claim for financial settlement. ^[8]

The Family Court has wide powers to alter parties’ interests in property to do justice and equity in a financial settlement, even if there were no jointly-owned properties or joint bank accounts.

Generally, a de facto relationship needs to have existed for at least two years to enliven the Court’s jurisdiction in respect of financial settlement. ^[9] However, where a de facto relationship was less than two years duration, a financial settlement claim may still be available:

1. if the parties have a child together; ^[10] or,
2. if one of the parties made a substantial contribution (financial or otherwise) to property or the welfare of the family. ^[11]

But We Were On A Break!

Breaking up and getting back together can be interpreted as a mere break in the continuity of the relationship, rather than two separate relationships. Periods during which the parties were in a relationship can be aggregated for the purpose of assessing whether the de facto relationship was longer than two years duration. ^[12] As noted by the late Hon. Chief Justice Thackray (as he then was) of the Family Court of Western Australia in an interesting Western Australian case on the issue: “I suspect it would only be a lawyer (or Judge) who would be tempted to think [the mother] and [the father] had two different de facto relationships. Anyone else who knew them would simply have seen them getting back together and resuming their original relationship…” ^[13]

My Ex is saying we were de facto, but I don’t think that’s right. What now?

Relationships which are de facto, and relationships which are not, are hugely diverse.  As noted by the former Chief Judge of the Family Court Western Australia: “We live in a pluralist society in which concepts of even the most fundamental institutions, such as marriage, are highly value laden. Some of the components I have described of the relationship … would be seen by some as consistent (or at least not inconsistent) with the concept of marriage and yet be seen by others as anathema to that concept. … the moment a construct such as “marriage-like” is introduced, value judgments will come flooding.” ^[14]

If there is a dispute about whether a de facto relationship existed or, when it ended, it may be necessary to peer behind the curtain and examine the relationship in detail.

The indicators of whether a de facto relationship exists include:

• the length of the relationship;
• whether the parties lived together, and the nature and extent of any common residence;
• the existence of a sexual relationship;
• the degree of financial interdependence between the parties, and any financial support they provide to each other;
• how each person owns, acquires, and uses property, including their own property, the other person’s property, and any jointly-owned property;
• the degree of mutual commitment by them to a shared life;
• care and support arrangements for any children they have together, or with other people; and/or
• the reputation, and public aspects, of the relationship. ^[15]

What can I do to protect Myself?

A financial agreement can be made before, during, or after the relationship, to set out how the parties agree for their assets and finances to be dealt with in the event of a separation. ^[16]

Where parties have entered into a binding financial agreement which complies with all legislative requirements, the Family Court is unable to exercise jurisdiction in respect of matters dealt with by the financial agreement. ^[17]

Our Family Law team can assist you with all matters related to de facto separation, including providing you with further information and advice about BFAs and de facto property settlements.

Thank you to Danielle Wilson, solicitor, for her valuable research and assistance with this article.