How do I know if I am in a de facto relationship?

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There can be some confusion on the issue of property rights and spousal maintenance in de facto relationships, and particularly on what actually qualifies as a de facto relationship. However, the law itself is reasonably clear on the definition of a de facto relationship for the purpose of property settlements.

How Does The Law Determine If You Are In A De Facto Relationship?

Whether or not a relationship may be considered a de facto relationship for the purposes of a property settlement is regulated by the Family Law Act 1975. Where there is a dispute between the parties as to the status of the relationship, pursuant to the Act, the Court may determine whether a couple is in a de facto relationship based on a number of factors, such as:

  • How long the relationship has been going on;
  • The living arrangements, looking especially at whether the couple lives together;
  • Whether there is a sexual relationship;
  • How financially dependent/interdependent the parties are, and whether there are any arrangements (formal or informal) for financial support;
  • Who owns and uses the property of the relationship, whether properties are shared and who acquired their properties;
  • The degree of mutual commitment to a shared life;
  • Whether the relationship was registered;
  • Who performed general household duties, including the caring and support for any children in the relationship; and
  • The reputation and understanding of the relationship to friends, family and the public more generally.

The Court Looks At All The Facts

None of these factors are individually more important than another, and there is not necessarily a wrong answer. The Court looks at all of the facts of the specific set of circumstances and considers how they relate to each other. The status of a de facto relationship, or otherwise, was considered in the definitive case of Jonah v White (2012). Here, the parties had a long-standing extra marital affair, wherein White contributed $3,000 a month to Jonah for a number of years. However, there was very little public recognition of the relationship by Jonah’s family and friends, and seemingly no recognition at all by White’s family and friends. Both kept separate houses and families. White’s evidence was that while he did believe the relationship was a permanent situation, it was nonetheless an affair and he would choose his wife and family over Jonah. With this evidence, the Court determined that the parties were not a de facto couple on a ‘genuine domestic basis’ for the purposes of a property settlement, or for spousal maintenance.

De Facto Property Settlement

Once a relationship is recognised as de facto, then it must meet the requirements to apply for a property settlement. An application for a de facto property settlement and/or spousal maintenance can only be made where any one of the following conditions has been met:

  • The relationship has existed for more than two years;
  • There is a child of the relationship;
  • One partner has contributed (financially or otherwise) to the property, or as homemaker/parent, to such an extent that to not make an order for settlement or maintenance would be a serious injustice; or
  • Where the relationship has been registered under appropriate state/territory law.

Is There A  Time Limit?

Further, an application for resolution of property matters must be brought within two years of the end of the de facto relationship. Whilst there are some exceptions, the two year time limit is the standard rule applied by the Court. That said, the Court is willing to accept applications after the two years where:

  1. not accepting the application would cause hardship to either the applying person, or a child; or
  2. the application is for spousal maintenance and the applicant would face hardship at the end of the two year period without some form of income tested pension, allowance, or benefit.

Further Points For Consideration

The second category requires that the application has a ‘real chance of success’ and that the hardship would be more than any ‘normal appreciable detriment’, per Whitford v Whitford (1979). Recently in the matter of Senfl v Antinoni [2019], the Court found that Senfl’s claim for $2,000,000 was unrealistic, given that Antinoni was recently bankrupt. However, the Court also determined that spousal maintenance would put Senfl in a much better financial situation than she was at the time (Senfl had cancer and had been promised support from Antinoni that had not eventuated). As a result, the application for an order to grant an exemption for applying out of time was allowed.

Free 30 Minute Consultation

If you have separated from your spouse or de facto partner and need some advice and assistance with the process moving forward, contact Julia Adlem or Stefania Scarcella at Adelaide Legal on 08 8410 9294, for a free 30 minute meeting with one of our experienced family lawyers.