What is a de-facto relationship?

What is a de-facto relationship?

A de facto relationship is defined in s13A of the Interpretation Act 1984 (WA).  In Western Australia, a de facto relationship is a relationship where two people, regardless of gender and who are not married to each other, live together in a “marriage-like” relationship. 

Case law suggests that this definition is more problematic than helpful when trying to ascertain whether warring couples were in fact in a de facto relationship.

Trying to come to grips with the defining qualities of a marriage troubled his Honour, Chief Judge Thackray in the controversial case of Truman and Clifton [2010] FCWA 91 at para 338, in which his Honour commented:

How then is a Judge expected to decide whether a relationship between a man and a woman (or indeed under this legislation same-sex couples) is “marriage-like” in circumstances where married couples straddle the spectrum from the deliriously happy to the homicidally estranged?

at para 355 his Honour, said;

….I have to say I do not consider it is in the accepted nature of marriage for every important financial transaction between a couple to be formally documented. It is not in the accepted nature of a marriage for a man to use prostitutes (or to tell people he uses prostitutes) at the same time he claims to have committed to a woman for life. It is not in the nature of a marriage for a man to carry on a relationship behind the back of a woman who he knows has been faithful to him. It is not in the nature of marriage for a couple to spend what they regard as a most important significant occasion every single year apart from the other. Arguably it is also not in the nature of a marriage for a couple voluntarily to spend as much time apart from each other as this couple did. The relationship lacked the commitment to a shared life that characterizes marriage. I am also not persuaded that the relationship was seen by those who knew them as “marriage-like”. On the contrary, many wondered why they were together at all.

In his colourful depiction of what he considered “not acceptable” in a marriage, his Honour clearly draws attention to the difficult task faced by the Court of having to measure an unmarried couple’s relationship against the yardstick of a married couple’s relationship, which apart from the defining feature of signing marriage certificates and the gifting rings to one and other (in most cases) differ greatly from one to the next.

In determining whether a de facto relationship existed, the Court has also considered the following factors:

  • the length of the relationship;
  • whether the parties resided together;
  • the nature and extent of the common residence;whether there is or has been a sexual relationship;
  • the degree of financial dependence or independence between the parties;
  • whether there was joint property;
  • whether there was mutual commitment to a shared life; and
  • if there was care for any children.

However, no more weight is given to one of the above factors over another, nor is the above list of factors considered exhaustive. 

What we have seen in recent case law is a variety of relationships meeting the threshold, ranging from relationships in which the parties have lived together for many years with children, to relationships in which one of the parties have been married to another person at the same time, to relationships in which parties have maintained separate residences throughout the time they have known one another.  “Modern relationships” are giving rise to new and unusual pairings and challenging the “traditional notion” of a relationship, including relationships in which parties are living together for one or both parties to avoid aged care, and internet based and virtual relationships. It has become apparent over time that nearly all cases turn on their own facts when determining what constitutes a de facto relationship.

The Family Court has been faced with matters involving parties who have made applications with respect to property and maintenance, and who have then had unfortunate experience of being told that they have not been in a “de facto” relationship.  Similarly, the Family Court has heard matters in which parties have been “dragged” into litigation all because another party has claimed that they have been in a “de facto” relationship.

If a de facto relationship is established

In Australia separating de facto couples (including same sex couples) have substantially the same rights as those married couples with regards to property and maintenance. 

One of the notable differences in Western Australia is that superannuation is not included in the asset pool available for distribution between the parties but is classified rather as a financial resource.

The pre-requisites for a person to make an application to the Family Court of Western Australia, for a claim against their former partner’s property or to receive spousal maintenance are as follows:

  • the parties were in a de facto relationship for two years or more;
  • there is a child of the de facto relationship under the age of 18 at the time the claim is made and failure to make an order would result in a serious injustice to that partner caring for the child; or
  • the de facto partner applying for a property settlement for spousal maintenance made a substantial contribution to the relationship and failure to make an order would result in a serious injustice to the partner.

Lavan Legal comment

Whilst each case turns on its own facts, what seems to be the overriding decider in a case is the credibility of each party and the extent to which they can provide evidence through documentation or witnesses to support their version of events, to either establish or rebut the existence of a de-facto relationship.

If you are in any way unsure of the whether or not you are in a “de facto relationship” and the potential impact your relationship may have on your financial situation, we recommend that you seek appropriate legal advice.