Blog Post

Family Law Defacto Relationship

In accordance with Family Law Act 1975, a person is in a de facto relationship with another person if the persons are not legally married to each other and they are not related by family and having regard to all the circumstances of their relationship, they live together as a couple on a genuine domestic basis.

A de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex and it can exist even if one of the persons is legally married to someone else or in another de facto relationship.

A court determining whether a de facto relationship exists, those circumstances would be considered:

1. The duration of the relationship;
2. The nature and extent of their common residence;
3. If a sexual relationship exists;
4. The degree of financial dependence or interdependence, and any arrangements for financial support between them;
5. The ownership, use and acquisitions of their property;
6. The degree of mutual commitment to a shared life;
7. If the relationship is or was registered under a prescribed law of a State or Territory;
8. The care and support of children;
9. The reputation and public aspects of the relationship.

Case Law

Tree J in Crowley & Pappas identifies the difficulty in courts determining whether or not a factual platform sits circumstantially as a de facto relationship given the plethora of factors that might argue for or against such a relationship.

At [8] his Honour helpfully observes:

Those provisions, or their state counterparts, have been the subject of considerable judicial discussion, principally in an attempt to more precisely analyze what will comprise “a couple”. Much of that analysis seems to have its genesis in the difficulty in satisfactorily distilling the essence of such a common, everyday concept. From those decisions, the following propositions may be stated:

1. whether a de facto relationship exists or not is a question of fact, not a matter of discretion;
2. a de facto relationship does not need to be akin to marriage although the nature of the association involved in a marriage relationship may be instructive;
3. the parties determine the nature of their relationship and it may evolve and alter, even dramatically, over time;
4. there need not be full-time living together;
5. the relationship may be unhappy, but still subsisting;
6. sexual or other exclusivity is not necessary;
7. the gist of the inquiry is the degree to which parties have merged their lives into one. That connotes financial, emotional and physical interdependence.

Lynam v Director-General of Social Security (1983) 52 ALR 128 at 131 said:

Each element of a relationship draws its color and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances that may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.

Sinclair & Whitaker the Full Court noted:

[65] Given the nature of the definition of a de facto relationship in the Act the ultimate decision as to whether there is a de facto relationship at any given time is a matter for the court and not a matter for the parties. Although their perception of the nature of the relationship is a relevant matter it is not determinative.

In the last recent case Monforte & Saunders[2022] FedCFamC1F 552, theapplicant seeks a declaration pursuant to section 90RD of the Family Law Act 1975 (Cth) that the relationship was a “de facto relationship” and orders for property adjustment under s 90SM – Respondent opposes the application and disputed it was no more than “dating” or “boyfriend and girlfriend” No de facto relationship established in the case, the– applications were dismissed.

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