Could I be in a de facto relationship without realising it?

Our family lawyers are often asked what defines a de facto relationship?  Some are unsure if they live in a de facto relationship with their partner and others, who have been through family law before, try very hard to avoid being in a de facto relationship – by keeping finances separate, paying “board” and by not living together full-time. If you’re unsure about your own relationship status, you’re not alone.

There is some confusion surrounding the definition of a de facto relationship, not only due to the subjective language of the law, but also because different areas of the law employ different definitions of a de facto relationship. For example, for Centrelink purposes, parties need only to be living together to be classified as a de facto couple, whereas this is not the case for family law matters.

For family law purposes, the Family Law Act requires that a couple, who may be of the same or opposite sex, had a relationship as a couple living together for at least two years on a genuine domestic basis. Your relationship is not a de facto relationship if you are actually married to one another or if you are related by blood. Although Australia criminalises bigamy, which is the act of being married to two or more people at any one time, the law expressly states that a person can be in more than one de facto relationship at any given time.  Our firm has been involved in a number of cases where one party is legally married to one person AND in a de facto relationship with someone else, often as a result of a long-term affair that involved them living together several nights a week.  Clearly, this is an unusual situation but not unheard of.

In a recent family law case, a Judge helpfully set out the relevant law and case authorities addressing this issue and ultimately found that a de facto relationship existed between the couple in question, despite intermittent periods of separation and despite the fact that both parties engaged in sexual relationships with other people outside of the relationship. The ‘wife’ claimed that she had been in a relationship with the ‘husband’ for seven years, whereas the ‘husband’ claimed that they had only been in a casual intimate relationship for three years, and not to the extent that would satisfy the Family Law Act.

After hearing evidence from both sides, the Judge preferred the reliability and consistency of the ‘wife’s’ evidence in finding that a de facto relationship did indeed exist for at least four and a half years. He found that the parties’ conduct during that period evidenced a level of “coupledom” due to their shared commitment to daily life, including living at a common residence and caring for a number of animals together.  One party was a fly-in-fly-out employee, but a sexual relationship existed between them (despite this not being exclusive) and there was a level of financial interdependence between them.  Expressions of love had been made on both sides via text messages and other means, as would commonly be expected of a couple in a committed relationship, and they frequently attended functions together in public as a couple.

When the Court is determining the existence of a de facto relationship, many factors are taken into account to create a picture of the whole. Remember knowledge is power – so if this is an issue that you need to know more about contact one of our family lawyers for information.