The “who’s” and “what’s” of a Defacto Relationship

What is a Defacto relationship?

A Defacto relationship under section 4AA of the Family Law Act 1975 defines a Defacto relationship to be between two parties of the same or opposite sex. As of 2009, the Courts have the ability to make Orders for both financial and parenting matters for those involved in a Defacto relationship, as long as that relationship can be proved.

How do I know if I am in a Defacto relationship?

When the Court considers whether or not you were in a Defacto relationship, they take into account several factors in weighing up their decision including;

1. The duration of the relationship;
2. Whether there were any children of the relationship;
3. The nature and extent of your residence;
4. Whether a sexual relationship existed;
5. Whether you purchased any joint property together;
6. How others viewed your relationship; and
7. Whether you were financially co-dependent or dependant.

There are no specific number of factors that makes you a party to a Defacto relationship and this is simply a guide as the court will consider all circumstances of the relationship.

I am still married to my previous partner, can I still be a party to a Defacto relationship?

A Defacto relationship does not include parties that are married, as they come under their own section of family law. However, you can still be considered part of a Defacto relationship if you have another relationship outside your marriage. If you have re-partnered and are not yet divorced, you could be considered to be part of a Defacto relationship with your new partner.

I do not live with my partner, can I still be considered part of a Defacto relationship?

Although a Defacto relationship is defined as a relationship where two parties are living together on a genuine domestic basis, you do not necessarily need to be living with your partner 100% of the time. While you may not be permanently sharing one address or consider yourselves living together at one primary address, the courts take into account the other factors as listed above as well as your current living circumstances. They will consider how often you might sleep over at each other’s house as well as if you had made any contributions to the living arrangements or the property. If you have contributed frequently such as cooking dinner, doing the washing or helping them garden, you have contributed to their property and, regardless of you having separate addresses, the Court can may consider you to be in a Defacto relationship.

What does it mean if we separate?

If your Defacto relationship breaks down, you could be entitled to a financial settlement that is made by the Court through consent orders. Alternately, if there is a child of the relationship, the Courts can also grant consent orders relating to the parenting of the child and formalise the parenting arrangements you seek. For financial matters, you are required to apply for such Orders within a 2 year period after the breakup of the relationship.  There is no blanket rule on what a party should receive at the end of a relationship and the court analysis several factors in order to determine the final orders including;

1. Financial position of both parties at the start of the relationship;
2. Financial position of both parties at the end of the relationship;
3. Financial contributions made to the relationship;
4. Non-Financial contributions made to the relationship;
5. Future earning capacity; and
6. Who will have primary custody of the child.

If the court is satisfied that both parties were mutually committed to share a future together and believe that the consent orders put forward are fair to each party, then they reach a fair agreement.

It is best to consult a solicitor in regards to what you could be entitled to as a party to the defector relationship. Give our family law team a call today for friendly direction on what to do to proceed.