Am I in a de facto relationship?

by CLW Family Lawyers | Last Updated: Sep 26, 2019 | De Facto & Same Sex Relationships

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A question we frequently get asked by clients is whether or not they are in a de facto relationship.  Unlike a marriage, which has a formal piece of paper that identifies that the parties were married on a particular day, it is rare that there is any formal document recording the “terms” of the parties’ de facto relationship or indeed if they are even in a de facto relationship.

Determining whether or not you are in a de facto relationship is very important in circumstances where your relationship breaks down. This is because being in a de facto relationship may entitle you (or your partner) to make a claim for a percentage of the available property. Given that the definition of ‘de facto’ is unclear; many people are unaware that they are able to make a claim because they do not view their relationship as ‘de facto’.

A recent example involved a relationship by our client Bob with Sally (not their real names).  Bob and Sally had been in a relationship for 3 years.  Bob felt that the relationship was that of merely boyfriend and girlfriend. In support of his view, Bob told us the following:

  • He owned his own home. On some nights of each week, Sally would stay the night. On other nights of the week, Bob would stay at Sally’s rented unit.
  • Bob and Sally had many mutual friends but also had friends of their own. They would socialize together sometimes but also maintained friendships with other people.
  • Bob told us that he and Sally owned no property together but did have a joint bank account, which was set up to save money for joint holidays together. Bob and Sally had travelled overseas on a number of occasions together.

Bob regarded that their relationship was that of “boyfriend and girlfriend”. Sally had a very different view.  Sally’s view was that they were living in a de facto relationship even though they were not living in the same house together at all times.  In support of Sally’s view, she pointed to the following facts:

  • They had a joint bank account which Sally used sometimes for groceries and to pay for Foxtel at Bob’s place. Bob had told friends of Sally’s that he regarded Sally as his “partner” and that he had told her and other people they “intended to be together forever”. He had proposed marriage to her.
  • Sally had a number of letters and cards from Bob where he described her as his “lifetime partner” and that they “will be together forever”.
  • Sally said that the bank account which they were using for a holiday was also one that they had discussed using to save for a deposit on a home.
  • Sally also said that she had helped Bob renovate his home that he owned and in the course of her employment as an architect had drawn plans and submitted them to the local council in which she had referred to herself as “project manager”.

As can be seen, Bob and Sally have a very different view about their relationship. Such differences of opinion are very common in couples, regardless of their age, the length of their relationship or the couple’s sexual orientation.

So what is a de facto relationship?

It can be difficult at times to determine whether or not people are actually in a de facto relationship.  In determining whether or not parties are in a de facto relationship, lawyers look to a number of important factors. These factors include:

  1. The duration of the relationship.
  2. The nature of the parties living arrangements (e.g. do they live together? How long have they been living together?).
  3. Whether a sexual relationship exists.
  4. The degree of financial dependence or interdependence between the parties (e.g. are there any joint bank accounts, mortgages or credit cards? Does one person financially support the other?).
  5. Any joint ownership or use of property.
  6. Does either party have another spouse?
  7. The degree of mutual commitment to a shared life (e.g. through terms in their wills).
  8. Whether the relationship has been registered under a prescribed law of a State or Territory.
  9. Care arrangements for any children.
  10. The reputation and public aspects of the relationship (e.g. how do friends and family view the couple? Have they travelled overseas together or attended family celebrations together?).
  11. Addresses for tax returns and drivers licences.
  12. Declarations to authorities such as the tax office or Centrelink.

However, the fact that one of those elements is not present does not mean that the parties are not in a de facto relationship and the fact that all of the elements are present, does not necessarily mean that the parties are in a de facto relationship.  It depends very much on your special facts. Our judges have a ‘list’ to use and have a very wide discretion. Your evidence, the detail and how you present it is critical.

If you are concerned about your relationship and are unsure as to whether or not you might be in a de facto relationship then please do not hesitate to contact us.  We will be able to provide some guidance and re-assurance to you.

Important Disclaimer: The content of this publication is general in nature and for reference purposes only. It is current at the date of publication. It does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.

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