Am I in a de facto relationship?
The term “de facto” is often thrown around loosely, usually in airport immigration queues and credit applications! But do you understand the threshold test of a de facto relationship, and the family law implications?
Unlike other States, Western Australia has retained its State-based jurisdiction in relation to property proceedings for couples in de facto relationships.
Section 205Z of the Family Court Act 1997 (WA) says that the Family Court of Western Australia may only make such an order for a property adjustment or spousal maintenance, where it is satisfied that:
- the de facto relationship has existed for at least 2 years; or
- there is a child of the de facto relationship under the age of 18 years old and failure to make an order would result in serious injustice to the partner caring for the child; or
- the de facto partner who applies for the order made substantial contributions and failure to make the order would result in serious injustice to that partner.
But what is a de facto relationship?
The answer to that question is not as simple as how long you’ve lived together. The law tries to look at each situation from a number of different angles, when coming to a conclusion on the overall situation.
Section 13A of the Interpretation Act 1984 (WA) defines references to “de facto relationships” in the Family Court Act 1997 (WA) as a relationship other than a legal marriage between two persons who live together in a “marriage‑like” relationship.
This section also sets out a number of factors that are indicative of a de facto relationship, but are not essential:
- The length of the relationship;
- Whether the couple have lived together;
- The nature and extent of common residence;
- Whether there is, or has been, a sexual relationship between the couple;
- The degree of financial dependence or interdependence, and any arrangements for financial support, between the couple;
- The ownership, use and acquisition of their property;
- The degree of mutual commitment by them to a shared life;
- Whether they care for and support children; and
- The reputation, and public aspects, of the relationship between them.
These factors are not exhaustive and will not apply to every de facto relationship. Rather, they are broad indicators and no factor is given more weight than any other.The Court looks at each case and decides matters based on the facts of the case in front of them.
The evidence before the judges making these decisions can often be complex and unclear. Hence, it’s the quality of the evidence and argument put by the lawyers can be critically important to helping the court to reach its determination.
Common challenges to the threshold test
When does casual turn to de facto?
It’s more difficult to establish the start and end dates of a de facto relationship than it is for a marriage.
De facto relationships may gradually develop and don’t always have the symbolic finality of a divorce. As a result, the Family Court must consider whether there was any break in the continuity of the relationship and, if so, the length and the extent of the break.
While establishing the length of the relationship is not always necessary, disputes can arise which can cause dates to become crucially important. For example:
- where one party claims the relationship did not last for the minimum 2-year period and there is uncertainty as to whether the Family Court has jurisdiction; or
- where the exact date of separation is not easily identifiable and it is contended that the 2 year limitation period within which parties may file property proceedings has expired.
Commitment doesn’t look the same for every couple
Our society traditionally thinks of committed couples as those who live with one another. However, while making a home together is one factor to consider, it is not determinative.
Some online relationships or long-distance relationships see de facto couples never or rarely living in the same place at the same time. It is a common misconception that cohabitation is essential to establish a de facto relationship. As can be seen above, it is merely one factor to consider, if at all relevant.
The presence or absence of sexual intimacy also does not determine the existence of a de facto relationship. Every relationship is different so the court must consider peripheral factors too. These include things like culture, religion, age, and personal preference.
De facto couples need not be exclusive relationships either. They can exist if one or both parties are in multiple de facto relationships or are married to someone else. However, this can have an impact on the degree of mutual commitment to a shared life.
Intermingled finances is a factor that can be supported by evidence such as bank statements and records of financial transactions. However, this might be less relevant in modern relationships. Current trends seem to indicate more couples opting to have more financial independence.
Each case depends on its own set of facts. Hence, the Family Court has considerable discretion in determining whether a de facto relationship exists in a set of circumstances. Given this uncertainty, documentary evidence and witness accounts often become incredibly important in establishing or refuting the existence of a de facto relationship.
Why is this important?
Unmarried couples sometimes assume that they are avoiding any potential claim to a property adjustment or spousal maintenance. The reality could not be further from the truth.
In Australia, de facto couples have substantially similar rights to married couples. This applies whether the couple is same sex or heterosexual.
The main difference in Western Australian family law is that de facto couples are not able to split superannuation as part of the joint asset pool.