What Factors Make You A De-Facto?

Updated: Nov 25, 2020

Not married but in a relationship?

Marriage is not everyone’s cup of tea and neither is divorce; but when you are not married and separation occurs, what happens? Although it is normally assumed that the parties would have been in a de-facto relationship, the Family Court must first establish whether or not the parties were indeed in a de-facto relationship in order to make a decision on what or how much property each party is entitled to.

A common misconception with de-facto relationships is that they must have existed for at least 2 years for the relationship to be classed as ‘de-facto’. The 2 year rule only comes into effect if a party is seeking to commence property proceedings, as the Court will only make Orders if the de-facto relationship was at least 2 years – and that does not mean a solid 2 years. A Court can aggregate the relationship over a period of time, to total 2 years. Although the Family Law Act does stipulate that in order for a Court to make Orders for property division, a relationship must have existed for 2 years, there are still some exceptions. One of these exceptions is if the parties were in a relationship for less than 2 years and a child is born of the parties then a Court has the power to make Orders for the alteration of property.

Another exception is if the parties were in a relationship for less than 2 years, but the party seeking Orders made a substantial financial contribution to the acquisition of property and/or a substantial non-financial contribution to the relationship. The Court again has the power to make Orders for the division of property, if a failure to make the order or declaration would result in serious injustice to the Applicant. The final exception is if the relationship was registered under a prescribed law of a State or Territory, then the Court also has power to make orders in respect any property division.

But in any event and aside from if the relationship was registered, the Court has to determine that a ‘de-facto’ relationship actually existed.

So what exactly makes a relationship, de-facto?

The recent Full Court decision of Cuan & Kostelac shed light on what a Court will look at when determining if a de-facto relationship indeed exists. The case involved a fly-in/fly-out worker who resided with her partner on a somewhat infrequent basis and attempted to convince the Court that the relationship was not intimate. Instead, her argument was that she resided with the man and the arrangement was the she lived in his house rent free, when she was in town for work and provided the man with housekeeping and assisted with the management of his finances.

Under the Family Law Act, a Court must consider the following, when determining if a de-facto relationship exists:-

  1. the duration of the relationship;

  2. the nature and extent of their common residence;

  3. whether 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 acquisition of their property;

  6. the degree of mutual commitment to a shared life;

  7. whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

  8. the care and support of children; and

  9. the reputation and public aspects of the relationship.

The implications of these considerations means that although one or both parties believe that the relationship is only casual, it may be the case that a Court will find that a de-facto relationship indeed existed and if separation occurs, then the effects will be identical as if the parties were married and getting divorced.

Here at Vizzone Ruggero Twigg Lawyers, we specialise in matters concerning de-facto relationships and obtaining property settlements or Orders from the Court and Lisa Ruggero Salerno or Daniella Ruggero, both Accredited Family Specialists, can help you.

Make an appointment for either at our City or Mascot offices by calling 9264 7244 or emailing law@vrtlawyers.com.au

Lisa Ruggero Salerno – Accredited Family Law Specialist

Daniella Ruggero – Accredited Family Law Specialist

#defacto #defacto #facto #FamilyLaw

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