Definition and background
A de facto relationship is one where two unmarried individuals are living together on a genuine domestic basis.
The Federal Circuit and Family Court of Australia (FCFCOA) only began hearing matters in relation to de facto relationships relatively recently. The Family Law Act 1975 (Cth) (the Act) was amended to reflect the Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008 (the Amended Act). The Amended Act acknowledges de facto relationships and allows them to seek financial orders, property adjustments and maintenance in the FCFCOA. The Amended Act also accepts that it is possible for an individual to have multiple de facto relationships, or to be a de facto relationship with one person while legally married to another.
Does a de facto relationship exist?
The FCFCOA is sometimes asked to determine whether a de facto relationship exists between two individuals. In order to do this, the FCFCOA looks at factors such as the following:
- The duration of the relationship two or more years;
- Whether the parties lived together and for how long;
- Whether there was a sexual relationship;
- Whether one party is financially dependent on the other, and to what extent;
- Whether the parties owned or used party jointly;
- Whether the parties have a mutual commitment to a shared life
- Whether the parties registered their relationship in their State or Territory
- Whether the parties have children together, or whether they support one another’s children;
- The reputation of their relationship in the public eye.
Not all of the above mentioned elements need to be met in order for there to be a de facto relationship. Each relationship is different, and is assessed on a case-by-case basis. One element does not have more weight or significance than another.
Parties to a de facto relationship may have an entitlement to receive spousal maintenance from their former partner, much like married couples.
To receive spousal maintenance, a party to the relationship must establish that they are unable to financially support themselves for at least one of the following reasons:
- They are the sole or primary carer of a child of the relationship who is under the age of 18 years;
- They are unable to earn a sufficient wage due to their age, physical or mental incapacity; or
- Another reasonable explanation.
Since the implementation of the Amended Act, parties to a de facto relationship can now enter into most forms of pre-separation agreements.
Financial agreements (sometimes knows as ‘pre-nups’ or ‘post-nups’) are private contracts that record all or certain financial aspects of the de facto relationship. They can be drafted to record how the parties wish their financial affairs to be treated in the event of a separation.
Financial agreements can be risky, as there are various grounds under which they can be set aside in order to ensure justice and equity to the parties to the contract. Financial agreements assume you have a ‘crystal ball’ and can tell exactly what will happen in the future. In the event that circumstances occur that are not contemplated by the Financial Agreement, that can be a basis on which the agreement is set aside. The problem is, you don’t know what you don’t know, so it is hard to draft an agreement that factors in every possible contingency.
Financial agreements, particularly those entered into after separation, can be helpful where parties want to enter into novel arrangements that may not be approved in a conventional Court setting.
Commencing proceedings in the FCFCOA
Following the recognition of de facto relationships, issues in dispute in de facto relationships, be they parenting or property-related, are negotiated in the same way as a married couple. However, parties to a de facto relationship must ensure to commence negotiations as soon as possible after a breakdown in a relationship. In the event that negotiations break down and a party wishes to commence proceedings in the FCFCOA, they must do so within two years of separation. Otherwise, they are out of time and will need to seek special leave to be able to make a claim (which may be denied).