Are You In A Genuine De Facto Relationship?

De Facto Relationship Disputes

The Federal Circuit and Family Court of Australia is empowered with jurisdiction to make property settlement Orders in de facto relationships only where certain conditions are met, as explained by Justice Murphy in the Full Court decision of Fenton v Marvel [2013] FamCAFC 132:

The de facto relationship broke down after 1 March 2009;
The de facto relationship was a genuine de facto relationship, as defined in section 4AA of the Act; and
The de facto relationship existed for at least 2 years (and the 2-year threshold can be aggregated by adding separate periods together).

At the time of writing this article in January 2022, Category 1 is almost certainly satisfied for most separating couples.

Genuine De Facto Relationship? Categories to be Considered

Category 2, whether the relationship was a ‘genuine de facto relationship’ is a very nuanced and intricate subset of the Family Law. There have been many cases fought and appealed over that matter, as understandably, if the relationship satisfied the legal tests, the claimant could have a sizeable property settlement to look forward to.

Subsection (2) of Section 4AA of the Family Law Act specifies some of the categories which are to be considered by the Court in determining whether a relationship was a genuine de facto relationship (the commentary in the square brackets are mine):

the duration of the relationship [short, transient or volatile one-night stands, for instance, are less likely to be considered a genuine relationship];
the nature and extent of their common residence [if the parties operated separate homes, it is less likely to be a genuine relationship than if they shared one home together];
whether a sexual relationship exists [some relationships don’t have much sexual frequency, as for instance where one partner works away from home for extended periods. Sex is just one factor, among many];
the degree of financial dependence or interdependence, and any arrangements for financial support, between them [this factor is weighed quite heavily by Courts – if one party relies on the other and the other is aware and supports the former, it is more likely to be a genuine relationship];
the ownership, use and acquisition of their property [if the parties buy property in joint names, or purchase assets from joint funds, this is also likely to be a genuine de facto relationship];
the degree of mutual commitment to a shared life [making sacrifices for the other partner, for example];
whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
the care and support of children [whether the children be from the relationship or from previous relationship(s), each party’s role in parenting those children are relevant. The more involved, the more likely it is a genuine de facto relationship];
the reputation and public aspects of the relationship [Instagram, Facebook posts, SMS messages are all frequently relied upon in this element to demonstrate that the partner(s) regarded the other as more than just ‘a friend’].

Subsection (3) of Section 4AA makes it clear that, ‘No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship’.

Subsection (4) of Section 4AA, moreover, states that a Court, ‘is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case’.

2-Year Threshold: A Common Misconception

Category 3, the 2-year threshold, on the other hand, is one of common misconception. Most clients have the misunderstanding that a de facto relationship only needs to last 6 months before the partner can make a claim. In general, that is incorrect. As in most areas of law, however, there are exceptions.

Where, for example, the relationship is less than 2 years in aggregated length, but the parties have a child (or children) together, or one of the parties made substantial financial, parenting or non-financial contributions to the relationship, the Court may still make a declaration under section 90RD that a de facto relationship existing between the two peopled.

Once such a declaration is made, the applicant can then bring a claim for a property settlement pursuant to Section 90SM of the Family Law Act. Even though the relationship may be very short, such an applicant, particularly if they have the primary care of the child of the relationship, may secure a sizeable property settlement in their favour.

Take-Home Points

As should be evident by now, the question of whether a genuine de facto relationship exists is often heavily litigated. It is important that you engage a lawyer with expertise with such intricate nuances when determining your own de facto property settlement matters.

JosephDavid Lawyers are Accredited Specialists in Family Law Property settlement disputes and we are more than capable and willing to help you in your matter.

Contact Us Now for Free and see how we can assist you.