When is a Relationship a De Facto Relationship?

18/08/2015

Joanne and her partner James separated after being together for over 5 years. The relationship had for a long time been “on gain and off again”. In times of difficulties Joanne had stopped living with James and return to live with her mother. Joanne then returned to live with James. Ultimately Joanne decided that the relationship was over and found her own accommodation. Joanne raised the issue of a property division with James. James told her that she was not entitled to anything as they had never been in a de facto relationship. James said that they were never more than boyfriend and girlfriend.

Joanne sought advice from Watson & Watson as to her options and likely outcomes.

Joanne and James had one child.

James had purchased property in his sole name. They had both worked during the time that they had known each other but had kept separate bank accounts and credit cards.

Watson & Watson advised Joanne that if the dispute could not be resolved that proceedings should be commenced in the Federal Circuit Court of Australia seeking property division.  The Federal Circuit Court of Australia determined that it would decide the issue of whether or not there was a de facto relationship as a threshold issue before determining the division of property between them.  By the time the matter had reached Court the property was significant.

A person is in a de facto relationship with another person if:-

(i)               The persons are not legally married to each other; and

(ii)              The persons are not related by family; and

(iii)             Having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

In determining how to decide whether or not there was a genuine domestic basis for the relationship the Court has regard to:-

  1. The duration of the relationship.
  2. The nature and extent of their common residence;
  3. Whether a sexual relationship exists;
  4. The degree of financial dependence or interdependence, and any arrangements for financial support between them;
  5. The ownership, use and acquisition of their property;
  6. Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
  7. The care and support of children;
  8. the reputation and public aspects of the relationship.

In Joanne’s case the Court found that on the balance of probabilities she and James were living in a genuine domestic relationship for more than 2 years and ruled that there was a De Facto Relationship. The Court could then go on to hear and determine Joanne’s claim for property division in the event that an appropriate division could not be resovled.

In another matter a married man had fathered a child with a woman other than his wife, after a relationship that had lasted intermittently over some years.  On the basis of the facts of that case, Watson & Watson considered that there was no defacto relationship and the mother’s application for property should be resisted.  Despite a threat, no application was made by the mother.

Each case must be considered including the factual matters concerning the relationship in light of the matters referred to in (a) to (h) above.

Please do not hesitate to contact Richard Watson or Dennis Grant who will be happy to discuss your concerns or queries in relation to whether your relationship is deemed to be “de facto relationship” or not.

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