Are You In A De Facto Relationship?

by Natasha Heathcote on September 14, 2015

Natasha Heathcote

You have been dating and living with your partner for some time. You may even share bills and work around the home. You might even have a child together.

But when are you in a ‘de facto’ relationship?

Section 4AA of the Family Law Act 1975 defines a de facto relationship as a relationship where the two persons are not legally married, they are not related by family and having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis. 

Generally speaking there are three ways in which a couple can be declared to be in a de facto relationship under the Family Law Act, (section 90SB):

  1. The parties have been living together on a genuine domestic basis for a period of 2 years or more; or
  2. There is a child of the relationship; or
  3. One of the parties to a de facto relationship made substantial contributions of a kind set out in Section 90SM(4)(a),(b) or (c).

Section 90RD of the Family Law Act provides that the Court can declare that a de facto relationship existed or never existed. The Applicant seeking such declaration has the burden of proof, that is on the balance of probabilities, to prove that they were or were not in a de facto relationship.

In the case of Harbrow & Boston [2015] FCCA 1414, despite having a child together the Court found that the parties were never in a de facto relationship.

In this case the Applicant de facto wife sought a declaration that the parties had been in a de facto relationship for over six years and had a child together.

The Respondent’s case was that they had only ever been friends, despite being intimate only once when they conceived their child.

The Applicant contended that they jointly purchased a property during the relationship. She later conceded she made no financial contributions to the property and the Respondent said that she was living in his property in lieu of payment of child support to her.

The Applicant received Centrelink benefits as a single mother, she said because the father forced her to.

Interestingly, during he relationship they travelled to Disneyland together with the child!  

Judge Harland considered the factors under section 4AA and determined that the parties were never in a de facto relationship. The factors considered are:

  • The duration of the relationship;
  • Nature and extent of their common residence;
  • Whether a sexual relationship exists;
  • Their degree of financial dependence or interdependence;
  • Ownership, use and acquisition of property;
  • The degree of mutual commitment to a shared life;
  • Whether the relationship is or was registered;
  • The care and support of children; and
  • The reputation and public aspects of the relationship.

Judge Harland held that the Applicant had not discharged the onus of proof and accordingly declared that the parties were not in a de facto relationship.

It must be remembered that each case turns on its own unique facts.

If you are unsure whether or not you are in a de facto relationship, or need advice regarding your relationship or its breakdown, please contact us at Armstrong Legal.

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