De facto relationships and family law

There is a frequent misconception that if two people live together, they are immediately regarded to be in a "de facto relationship" under family law. It is not always the case, and living together does not necessarily imply a de facto relationship. So what does a de facto relationship entail in terms of family law?

The Family Law Act of 1975 includes distinct laws for married couples and property claims, thus you must not be legally married to be a de facto pair. You are not allowed to be linked by blood, either. Finally, you must have "a relationship as a couple living together on a genuine domestic basis" (section 4AA(1)(c) of the Family Law Act 1975), taking into consideration the nature of the relationship, which is the aspect that is most likely to cause disagreement.

Living together does not fit the criterion on its own. If there is a disagreement about whether a de facto relationship exists, many elements are used to ascertain the kind of relationship, including:

  • the character of the relationship, including its duration, the degree of mutual commitment to a shared life, place of living for the parties, and whether or not there was sexual activity involved;
  • how parties supported one another financially, as well as whether they owned or utilized assets jointly or separately;
  • whether the relationship was or was not documented by specific legislation * the upbringing of children, the support of parents, and the portrayal of the couple's relations to others, both publicly and privately.

None of these elements alone will necessarily resolve the conflict.

The recent appeal decision in Denys & Kellett [2022] FedCFamC1A 223 emphasizes that the key question is whether the parties were really cohabitating under all of the relationship's conditions.

However, a de facto relationship does not always give rise to a family law claim for a monetary settlement. It is necessary for the relationship to have ended. Moreover, you must satisfy one of the four "gateway" requirements.

  • The duration of the de facto partnership in total is at least two years.
  • The couple has a kid together.
  • The connection is or was registered in accordance with a state or territory's specific legislation.
  • A party had made significant contributions, and failing to issue an order would be gravely unfair.

Other jurisdictional conditions must be met, and an application must be submitted within two years after the relationship's dissolution; otherwise, you must request the court's permission to continue over the deadline, which is not always successful. It's crucial to get guidance right away on the state of your relationship and your eligibility for a claim.

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