What is a De Facto Relationship?
A de facto relationship refers to a relationship between two individuals who are not married to each other, but live together on a genuine domestic basis. This can include both heterosexual and same-sex couples.
Legal Recognition of De Facto Relationships
Under the Family Law Act 1975, de facto relationships are legally recognised in Australia. A person is in a de facto relationship if they and their partner are not legally married to each other, are not related by family, and have a relationship as a couple living together on a genuine domestic basis.
Criteria for a De Facto Relationship
In determining whether a de facto relationship exists, courts may consider several factors, including:
- 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
- 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
- The care and support of children
- The reputation and public aspects of the relationship
Rights and Obligations
Partners in a de facto relationship have many of the same rights as married couples, including the right to apply for property settlements and spousal maintenance under the Family Law Act.
Recent Updates to the Law
A significant legal update in 2022, the High Court of Australia’s decision in the case of Fairbairn v Radecki, further clarified the understanding of de facto relationships. This judgment emphasised the importance of the specific circumstances of a couple’s relationship when determining whether a de facto relationship exists or has broken down.
In this case, one party’s decline in cognitive health led them to move into an aged care facility. The Court had to consider whether this move indicated a breakdown of the de facto relationship. The Court ruled that the separation into different accommodations, particularly due to one party’s health condition and subsequent move to an aged care facility, doesn’t necessarily prove the breakdown of a de facto relationship.
Ultimately, the High Court found that the de facto relationship had broken down around the time when one party refused to “make the necessary or desirable adjustments” to continue supporting their partner’s needs, not because of the move to an aged care facility or the partner’s mental incapacity.
Property and Financial Settlements
As per the Family Law Act, de facto couples can apply to the court for orders dividing any property they own in the event of a relationship breakdown. It’s important to note that these applications must be made within two years of the breakdown of the relationship. The court will consider factors such as direct and indirect financial contributions, non-financial contributions, and future needs when deciding how to divide the property.
The Fairbairn v Radecki case in 2022 offered an interesting perspective on property settlements in de facto relationships. The couple in this case chose to keep their assets separate throughout their relationship, except for living together in a home owned by one of them.
Spousal Maintenance
One party from a de facto relationship is liable to maintain the other person to the extent that they can do so, if, and only if, that other party is unable to support themselves adequately. The court will consider factors like the age, health, income, property, ability to work, and whether the party should be the primary caregiver to a child from the relationship when deciding on maintenance.
Child Custody and Support
Parents, whether in a marriage or de facto relationship, have a duty to maintain their children. This duty is generally fulfilled by the parent with whom the child lives providing day-to-day care, while the other parent provides financial support. This financial support is calculated using a statutory formula based on the parents’ income, the number of children, and the percentage of care provided by each parent.
Child custody and visitation arrangements are usually decided based on what is in the best interests of the child.
It should be noted that although de facto relationships in Australia are subject to many of the same laws and protections as marriages, including property settlements, spousal maintenance, and child custody, the interpretation of these laws can depend heavily on the specific circumstances of the relationship.