What is a de facto relationship?

Usually when people come to me for advice about property division, and they aren't married, they acknowledge or assume that they were in a de facto relationship. But occasionally a matter comes along where careful consideration has to be given as to the legal nature of a relationship. 

The Family Law Courts have power to make orders in relation to property division between people who are or were married and those who are or were in a de facto relationship - outside of those circumstances the Court does not have power to makes orders.  It is therefore paramount, if there is any question as to the legal definition of a relationship that you carefully consider the definition of a de facto relationship. 

Section 4AA of the Family Law Act provides the definition of a de facto relationships. 

According to that section a person is in a de facto relationship if:

• the persons are not legally married to each other; and
• the persons are not related by family; and
• having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

It is important to note that a person can be in a de facto relationship while married to another person or while in a de facto relationship with another person. 

Section 4AA goes on to say that the circumstances of the relationship may include:

• the duration of the relationship;
• the nature and extent of their common residence;
• whether a sexual relationship exists;
• the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
• the ownership, use and acquisition of their property;
• the degree of mutual commitment to a shared life;
• 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; and
• the reputation and public aspects of the relationship.