There is a common misconception that a couple is in a de facto relationship after having lived together for a period of six (6) months, and it is often a topic of conversation at the Sunday BBQ get-together or social event.
For the purposes of the Family Law Act, when considering whether a couple (either same sex or opposite sex), are in a de facto relationship, the Court applies the test of whether the couple is living together on a genuine domestic basis, provided they are not married or related by family.
What does Living Together on a Genuine Domestic Basis Mean?
In considering whether you are living together on a genuine domestic basis with your partner, the Court will have regard to the following factors:
- the duration of your relationship;
- the nature and extent of their common residence – (the Court can still determine that a de facto relationship existed at law even if you did not live together);
- whether a sexual relationship exists;
- the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
- the ownership, use and acquisition of any property;
- the degree of mutual commitment to a shared life;
- whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship (The registration of the relationship under a State or Territory Register is not definitive of the Court finding that you are in a de facto relationship;
- the care and support of children; and
- the reputation and public aspect of the relationship.
In determining whether a de facto relationship exists, the Court will have regard to the aforementioned factors and what weight it attaches to any of the said factors is dependent upon the circumstances of each individual matter.
Are my Assets at Risk?
The Court only has jurisdiction to make orders in relation to the division of your assets, if:
- the period, or total periods, of the de facto relationship is at least two (2) years;
- there is a child of the de facto relationship;
- the de facto relationship was registered under a state or territory law; and
- the applicant party has made substantial contributions.
If you are living with your partner, you should also consider the protection of your assets and the best time to seek advice is before you move in together or prior to separating from your partner, so as not to disadvantage yourself.
It is particularly important to consider these factors if you are legally married or in another concurrent relationship, as you may find yourself in a situation whereby you risk having two (2) property settlement proceedings to contend with.
At MBA Lawyers we pride ourselves on delivering strategic, cost effective and practical advice and our friendly Family Law team is here to answer any questions you may have regarding your relationship.
Written by Lucinda Stevenson