Ever wondered at what point your relationship might transition from long term dating to a legally recognised de facto relationship? The answer is not as simple as you may think.

To be in a “de facto relationship” parties will not be married to each other, will not be related by family and having regard to all the circumstances of their relationship, they will have a relationship as a couple living together on a genuine domestic basis.

A person who is married can be in a de facto relationship with another person. Same sex couples can also be considered to be in a de facto relationship.It is even possible for a person to be in 2 de facto relationships at once.

When there is a dispute as to whether a de facto relationship exists the court will consider things such as:

1. the length of the relationship,
2. the nature of the parties living arrangements including the extent of their common residence,
3. whether a sexual relationship exists,
4. the degree of financial dependence or interdependence and financial support,
5. the ownership, use and acquisition of property,
6. the extent to which both parties were mutually committed to a shared life,
7. the care and support of children,
8. whether the relationship was registered, and
9. the reputation and public aspects of the relationship.

The case of Regan & Walsh (2014) involved a same-sex couple. The applicant claimed to be in a de facto relationship with the respondent. The respondent rejected this assertion stating that the parties were “friends with benefits”, that is, friends who had a sexual relationship at different times. Between the years 2005 and 2013 the parties lived together at various times for a total of 6 years. The respondent asserted that during periods of cohabitation, the parties were flatmates. Ultimately, the court found that no de facto relationship existed.

Although the parties lived together the court found that the relationship was not of a couple living together on a genuine domestic basis. The evidence which led to this conclusion included:

1. That the court was not satisfied that the applicant did not know about the respondent’s sexual relations outside of their friendship.
2. That the applicant obtained social security benefits for much of the purported relationship and in his application for these benefits he did not claim to be in a relationship with the respondent.
3. The applicant asserted the parties had a joint bank account in their names but failed to produce evidence of such account.
4. That the applicant acknowledged that he did not know the password for the respondent’s computer, mobile telephone or bank accounts.
5. The parties both accepted that the respondent did not ever travel with the applicant on business trips or holidays. The respondent gave evidence that his former wife had travelled with him on business trips.
6. The court accepted the evidence of the respondent that the applicant was both manipulative and controlling and the respondent was found to be an open, honest and credible witness.

The application seeking property settlement was dismissed.

In the case of Cadman & Hallett (2014) there was a dispute as to the date of separation. Both parties accepted that they lived together in a de facto relationship between 1991 until 2000. However, the applicant asserted the relationship ended in 2010 and the respondent asserted the separation occurred in 2000.If the court found that the relationship had ended in 2000 the applicant would have been out of time to bring proceedings before the court seeking property settlement (such application must be made within 2 years after the end of the de facto relationship).

In this case the parties ceased to have a sexual relationship after the year 2000. During the period between 2000 and 2010 the applicant spent various months and sometimes almost years in the United States, studying. The applicant told the respondent that he had a number of sexual encounters in the United States. Despite this, the parties continued to communicate regularly. The respondent also continued to support the applicant financially during times whilst he was in the United States and when he returned home to Australia to live with the respondent.

There were numerous written communications between the parties which were indicative of a subsisting relationship. There were some difficulties during the relationship but it was not until October 2010 that the respondent sent an email to the applicant confirming that he would not be welcome to return to Australia to live with him.

The court found that the de facto relationship remained on foot until October 2010 despite the parties spending many months and sometimes years living apart. This finding was upheld on appeal.

If there is some dispute as to whether a de facto relationship exists, the court will make a declaration as to such relationship existing or not.If a de facto relationship is found to have existed the court must then determine if a property or maintenance order can be made.To do this they must be satisfied that either:

1. that the period or the total periods of the de facto relationship is at least 2 years, or
2. that there is a child of the de facto relationship, or
3. that:
   1. the party to the de facto relationship who applies for the order or declaration made substantial contributions of a kind mentioned in paragraph 90SM(4)(a),(b) or (c), and
   2. failure to make the order or declaration would result in serious injustice to the applicant, or
4. that the relationship is or was registered under a prescribed law of a state or territory.

Every de facto relationship case is likely to turn on its own facts. In other words, each case will be different and the court will look to the intricate and particular facts of the case at hand to determine whether a de facto relationship exists or not.

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This article is for your information and interest only. It is not intended to be comprehensive, and it does not constitute and must not be relied on as legal advice. You must seek specific advice tailored to your circumstances.