De Facto Relationships: What Are They and Are You in One?

Every relationship is different and regardless of whether or not you consider yourself in a de facto relationship you may actually be in one, writes the TGB family law team.

It may be difficult to tell if you are in a de facto relationship but it is important to examine and define your relationship, as de facto couples have similar financial rights and responsibilities to married couples.

Being a de facto is also significant for matters relating to the Inheritance (Family and Dependents Provision) Act 1972  (WA) and the Equal Opportunity Act 1984 (WA).

Accordingly, the nature of your relationship may have significant implications in the future, particularly if you wish to seek a Family Court property settlement once the relationship has broken down.

Are We De Factos?

Broadly, to be considered in a de facto relationship the parties, including same sex couples, have been living together in a “marriage-like” relationship for at least two years.

A couple may still be considered de factos even if they have not been together for two years, if there is a child to the relationship or one or both of the parties has made substantial contributions to property. Parties can be in a de facto relationship even if one of them is legally married to someone else.

What is a Marriage-Like Relationship? 

De facto relationships in Western Australia are governed by the Family Court Act 1997 (“the Act”). The Act does not define the meaning of de facto but the Interpretation Act 1984 (WA) offers some guidance as to the factors used to determine whether or not a de facto relationship exists.

These factors include:

1. whether the parties have resided together;

2. the nature and extent of common residence;

3. whether there is, or has been, a sexual relationship between them;

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 (including property they own individually);

6. the degree of mutual commitment by them to a shared life;

7. whether they care for and support children; and

8. the reputation, and public aspects, of the relationship between them.

Case Law

The list above may seem to offer a clear guide as to what constitutes a de facto relationship but, unfortunately, it is often more complicated than this. In the case of Benedict & Peake[1], the Court held that a couple who lived together for approximately 13 years, had a child together, maintained a sporadic sexual relationship, and purchased property together were not in a de facto relationship.

Conclusion

There can be significant financial consequences to being in a de facto relationship, in particular whether you are entitled to a property settlement in the Family Court or are required to pay maintenance.

If you are unsure of whether or not you are in a de facto relationship or require assistance with your de facto property settlement please contact our Family Law team.

For further information or assistance contact your nearest TGB office. 

[1] Benedict & Peake [2014] FCCA 642