What is a De facto relationship?
Under section 4AA of the Family Law Act 1975, in deciding whether you were in a de facto relationship, the court will consider the following factors:
Duration of the relationship
the nature and extent of common residence
presence or absence of a sexual relationship
financial aspects of the relationship
if you had a commitment to a shared life together
if the relationship was registered
how you cared for any children you have
how other people saw your relationship
In Jonah and White (2011) FamCA 221 Murphy J defined the relationship being a de facto relationship when two people have merged their lives so much that for all practical purposes they were living as a couple which he said was the manifestation of “coupledom”.
Threshold Requirements
Not every de facto relationship would fall within the ambit of the law. In accordance with section 90SB of the Family Law Act 1975, a court can only make an order regarding de facto relationship if:
Individuals have been in a relationship for at least 2 years; or
There is a child of the relationship; or
Party making the application to the court has made a substantial contribution and a failure to make the order would result in serious injustice; or
The relationship was registered
Registration of a relationship
A couple in a de facto relationship can register their relationship with the Registry of Births and Marriages.
If your relationship is registered, you’ll be given a certificate which can be used as proof of the de facto relationship and how long you have been together.
Historical Background
During the 1980s, many of the major cases in Australia dealt with the complexities of resulting and constructive trusts formed between partners in a de facto relationship. For example, in Baumgartner v Baumgartner (1987) 164 CLR 137, Mr. Baumgartner purchased a house in his name. When the de facto relationship broke down, Ms. Baumgartner argued that she had an interest in the house as she had made contributions roughly 45% of the payment of the mortgage. The High Court ultimately held that the house was held by Mr Baumgartner on a constructive trust as the circumstances were such that it would be unconscionable to deny Ms Baumgartner an interest in the house. Although the decision made it easier for de facto partners to claim an interest in marital property after separation, there were still significant difficulties in making such claims as resulting and constructive trusts have considerable evidential and conceptual difficulties. To resolve this issue, legislative reforms were passed at both the states and the commonwealth level.
The Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 consolidated these reforms and provided that the issues related to children of de facto relationship and financial matters in the same way as it would for married couples.
Difference between a De Facto Relationship and an Affair
While you might struggle to answer when your partner asks, “what are we”, the courts have given extensive guidance on the difference between an actual ‘de facto relationship’ and what might just be a ‘fling or an affair’.
In Jonah and White, the applicant, Ms Jonah, contended that she was in a de facto relationship with the respondent, Mr White, for approximately 17 years while Mr White argued that the relationship was simply an extramarital affair. On evidence, both the parties they had a long-standing and committed sexual and affectionate relationship which was exclusive with the exception of the Mr White’s relations with his wife. Their love and affection towards one another was evidenced by the use of “pet names” for one another, sending affectionate emails and regularly contacting each other using phones. Although both parties lived in distinct households and kept their financial affairs separate, they would visit one another to stay with each other for short periods of time and at one point, Mr White also assisted Ms Jonah to purchase a house.
Despite this evidence, Murphy J held that the relationship could not be described as a de facto relationship as it lacked the characteristic of a ‘coupledom’. He accepted that Mr White could have been in a de facto relationship while being married. However, he highlighted that a number of other factors pointed to the opposite direction such as:
Maintaining distinct households
No relationship between Ms Jonah and Mr White’s children
No significant time spent by the parties as a couple socially
Maintaining financial affairs separately (business, investments, bank accounts)
The case illustrates how the court’s evaluation of your relationship may be different than what you think it to be.
