No ring, not bind­ing? De fac­to rela­tion­ships and fam­i­ly law

When par­ties sep­a­rate, whether they be mar­ried or in a de fac­to rela­tion­ship, the same laws apply in rela­tion to the divi­sion of their prop­er­ty. Since 1 March 2009, de fac­to cou­ples and mar­ried cou­ples have been able to apply to the Fam­i­ly Courts for Orders for the divi­sion of prop­er­ty. Here we answer 5 ques­tions that fre­quent­ly arise for peo­ple in a de fac­to relationship.

1. The ​“Two Year” Rule — What is a de fac­to relationship?

A de fac­to rela­tion­ship is a rela­tion­ship between two people:

• who may be of the same or oppo­site sex;
• who are not legal­ly mar­ried to one anoth­er or relat­ed by fam­i­ly; and
• hav­ing regard to all the cir­cum­stances of their rela­tion­ship, have a rela­tion­ship as a cou­ple liv­ing togeth­er on a gen­uine domes­tic basis.

The cir­cum­stances of each rela­tion­ship are assessed on a case by case basis. The cir­cum­stances that are con­sid­ered to estab­lish if per­sons have a rela­tion­ship as a cou­ple liv­ing togeth­er on a gen­uine domes­tic basis include any or all of the following:

• The length of time they have been in the relationship.
• The nature and extent to which they resided togeth­er. While hav­ing resided togeth­er is a com­pelling argu­ment for a de fac­to rela­tion­ship, it may be pos­si­ble for a de fac­to rela­tion­ship to exist although hav­ing main­tained sep­a­rate res­i­dences for all or part of the relationship.
• Whether a sex­u­al rela­tion­ship exists.
• The degree of finan­cial depen­dence or inter­de­pen­dence and whether there are any arrange­ments for finan­cial sup­port between them.
• Whether they own any assets togeth­er such as real prop­er­ty or bank accounts.
• The degree of mutu­al com­mit­ment to a shared life.
• Whether the rela­tion­ship is or was registered.
• Whether they have any chil­dren togeth­er (although hav­ing a child togeth­er does not mean of itself that a de fac­to rela­tion­ship will be found to have existed).
• The rep­u­ta­tion and pub­lic aspects of the rela­tion­ship, that is, are oth­ers aware of the rela­tion­ship? Do oth­ers per­ceive them as a cou­ple? Do they con­duct them­selves as a cou­ple in public?
• When deter­min­ing whether a de fac­to rela­tion­ship exists a Court may also con­sid­er any oth­er mat­ters as they may deem appropriate.

A de fac­to rela­tion­ship can exist even if one of the per­sons is legal­ly mar­ried to some­one else or in anoth­er de fac­to rela­tion­ship, or if the rela­tion­ship is an on and off rela­tion­ship. In Dahl v Ham­blin [2011] Fam­CAFC 202, the Court held that a de fac­to rela­tion­ship could be estab­lished even where the part­ners did not have a de fac­to rela­tion­ship con­tin­u­ous­ly for two years. The Court ruled there was a de fac­to rela­tion­ship and that it could make prop­er­ty orders as long as the peri­ods of rela­tion­ship added up to an aggre­gate of two years (i.e. par­ties could have sep­a­rat­ed and got­ten back togeth­er) and if at least one of those peri­ods occurred after 1 March 2009.

2. ​“A de fac­to in par­ent­ing orders is dif­fer­ent from a de fac­to in prop­er­ty orders” — When can a court make an order in rela­tion to a de fac­to relationship?

Before the court can make an Order in rela­tion to a de fac­to rela­tion­ship the court must sat­is­fy itself that one of the fol­low­ing cir­cum­stances exist:

• that the peri­od, or total of the peri­ods, of the de fac­to rela­tion­ship is at least 2 years; or
• there is a child of the de fac­to rela­tion­ship; or
• that a par­ty to the de fac­to rela­tion­ship who applies for a court Order made sub­stan­tial con­tri­bu­tions dur­ing the rela­tion­ship, whether they be finan­cial con­tri­bu­tions or home­mak­er and par­ent­ing con­tri­bu­tions, and a fail­ure to make an order would result in seri­ous injustice.

In Clarence v Crisp (2016) 55 Fam LR 292, the Court held that the deci­sion as to whether a de fac­to rela­tion­ship exists can­not dif­fer on the same set of facts depend­ing upon whether the dis­pute is about prop­er­ty or chil­dren. While in deter­min­ing par­ent­ing orders, the Court takes into account the best inter­ests of the child, this fac­tor does not deter­mine the sta­tus of rela­tion­ship between the adults involved.

3. ​“Every­thing’s in my name — they can’t touch it” — What can be divided?

Par­ties in de fac­to rela­tion­ships can apply to the Fam­i­ly Courts upon the break­down of their rela­tion­ship for Orders for a divi­sion of any prop­er­ty that the cou­ple own, either sep­a­rate­ly or joint­ly. This includes not only real prop­er­ty, motor vehi­cles, bank accounts, share­hold­ings in pri­vate and pub­lic com­pa­nies and the like, but also super­an­nu­a­tion. De fac­to part­ner main­te­nance can also be ordered.

4. ​“He/​She will auto­mat­i­cal­ly get 50/50” — How will the courts decide how prop­er­ty is divided?

When decid­ing how prop­er­ty will be divid­ed, the Fam­i­ly Court will con­sid­er if it is just and equi­table to make an Order for divi­sion. It will also consider:

• the val­ue of the par­ties’ cur­rent assets and liabilities;
• what each par­ty owned before the relationship;
• con­tri­bu­tions made by each par­ty through­out the rela­tion­ship, includ­ing finan­cial and non-finan­cial, and home­mak­er and par­ent­ing con­tri­bu­tions; and
• the fac­tors set out in Sec­tion 75(2) of the Fam­i­ly Law Act 1975, includ­ing who has care of any chil­dren, rel­a­tive earn­ing capac­i­ties and finan­cial resources avail­able to each party.

5. ​“We’ve bro­ken up ages ago” — Tim­ing in bring­ing proceedings

If you and your for­mer de fac­to part­ner are unable to reach agree­ment as to the divi­sion of prop­er­ty and you wish to make an appli­ca­tion to the Fam­i­ly Court for finan­cial orders, you must do so with­in two years of the break­down of your rela­tion­ship. After this time, you will need the per­mis­sion from the Court to start Court proceedings.