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DE FACTO RELATIONSHIPS

What is a de facto relationship?

The Property (Relationships) Act 1976 (the Act) governs the division of property between spouses (married couples), de facto partners and civil union partners who have a qualifying relationship, on the breakdown of their relationship, or upon death. The Act says for those people relationship property is to be shared equally.

What is a qualifying relationship?

A relationship of three years or more. After the three year period, the principle of equal sharing applies.

It is easy to say when you were married, but sometimes not so easy to say ‘we started living in a de facto relationship on ...’.

Section 2D of the Act defines a de facto relationship “as being a relationship between two persons whether they be a man and a woman or same sex partners, provided both are aged 18 or older and live together as a couple and are not married to each other or in a civil union with each other”.

What does living together as a couple mean?

The Act requires that when answering that question the Court take into account all the circumstances of a relationship including any of the following:

(a) the duration of the relationship

(b) the nature and extent of common residence

(c) whether or not a sexual relationship exists

(d) the degree of financial dependence or inter-dependence and any arrangements for financial support between the parties

(e) the ownership, use and acquisition of property

(f) the degree of mutual commitment to a shared life

(g) the care and support of children

(h) the performance of household duties

(i) the reputation and public aspects of the relationship.

However, the overall question for the Court is “did these two people live together as a couple”. None of (a) to (i) above is regarded as necessary, they are simply matters which assist the Court.

There are a number of cases where people have asked the Court to decide if they are in a de facto relationship.

What would it look like?

Those factors set out in (a) to (i) above are a guide. Living together, and time living apart, does not necessarily mean there is no relationship. There is no requirement that a person must spend time exclusively at one residence, or that there be a majority of time at one residence. One couple spent long periods apart and the longest period living together was 9 months overseas. The Court said that time apart was not fatal to the claim that there was a relationship. What was important was the cumulative weight of all the factors to provide the evidence that there was a relationship.

The cases show that if sufficient pieces of evidence exist which, when viewed cumulatively and through the application of common sense, satisfy the Court that a de facto relationship exists then the statutory test set out in the Act is met.

The Act applies to de facto relationships when that test is met – even in circumstances where the couple have not given any thought to whether they are in a relationship or not.

Because this legislation is “opt out” legislation it is important to know whether you are in a relationship or not. Once you are in it is 50/50. You can “opt out” by entering into a contracting out agreement.