A de facto relationship is defined in the Family Law Act as living as a couple in a genuine domestic relationship.
The circumstances used to decide if there is a genuine domestic relationship are set out at s.4A A92 of the Act. The definition is flexible. It covers relationships between two people of the same sex, two people of different sexes, and can include a person who is legally married or in a de facto relationship with another person.
The main elements in deciding if a de facto relationship exists are common residence, a sexual relationship, financial interdependence, commitment to a shared life, and having children. One or more of the elements can be missing and the law will still see the relationship as being de facto. One or more of the elements can be present, but the relationship may not be seen as a de facto relationship.
Is the Law Different for De Facto Relationships?
The law is now similar for married and de facto couples. The relevant exceptions for Victoria are about dates when people lived in either South Australia or Western Australia.
If the couple has lived in SA or WA, legal advice is needed to determine if they are covered by the Family Law Act. WA has its own law, although in this case it is very similar to all the other states. If you have lived in either of these states during your relationship, you need legal advice.
Many people believe that if they have kept their finances and property separate, they will not be seen as being in a de facto relationship. This is not the case, and since 2009, the law for married people and de facto couples has been substantially the same.
The law is the same for married and de facto couples when decisions about care of children and child support are made, as long as the child is the child of both people in the relationship.
Generally, the result will be the same as for married people. However, the Court has to be satisfied of at least one of the following:
- that the relationship has been in existence for two years;
- the relationship is registered in one of the states;
- there is a child;
- the applicant has made financial or non-financial contributions to the relationship;
- failure to make a payment would result in serious injustice.
You will need legal advice if this appears to be an issue.
Division of Property and Splitting of Superannuation
Again, the law is substantially the same as for married couples. Any division of assets must be “just and equitable”, and both financial and non-financial contributions will be counted.
In the eyes of the law, a de facto relationship is very similar to a marriage, but there are some points on which it can be helpful to seek legal advice. If you have any questions, please don’t hesitate to contact us.