What is a De Facto Relationship?

It is becoming increasingly common for people to see us because they are unsure whether they are in a de facto relationship and the financial consequences of being in a de facto relationship. It appears that things aren’t as straightforward as they used to be, and there are a variety of reasons for that, as we discuss below.

The ability to connect and commute has expanded what relationships look like. Modern Australia’s traditional relationship concepts are evolving and with that, the big picture for many couples also looks different. We often have people ask us questions like:

  1. We are not married. Can I relocate with the children?
  2. If we never shared a bank account, do I still need a property settlement?
  3. If they worked away, is the house more mine than theirs?
  4. If we kept separate residences but spent much time at each other’s homes, does that mean we were not in a de facto relationship?
  5. We were in a relationship, and I later found out they had another partner. Does this mean we weren’t in a de facto relationship?
  6. We never lived together, but we have a child together. Can I commence financial proceedings?
  7. We have been in a relationship for ten years but have only lived together for a short time. Am I entitled to a property settlement?
  8. We were only together for a short time but paid $100,000 toward the home we lived in. Can I apply to the Family Court?

All the answers to these questions are impacted by whether or not you are classified as being in a de facto relationship. Importantly you don’t need to be living together in some circumstances! Below is a recent example that illustrates that living apart doesn’t mean a de facto relationship doesn’t exist.


What is a de facto relationship?

Recently the decision of Fairbairn v Radecki [2022] HCA 18 (‘Fairbairn’), the High Court found that:

living together on a genuine domestic basis should be construed as meaning sharing a life as a couple and that section 4AA did not prescribe a way in which a couple may do this and was sufficiently broad to accommodate the many ways a life was shared in the modern world.

Therefore, it is possible to be living separately but share a life and be in a de facto relationship.

In Fairbairn, after a relationship of about 12 years, the de facto wife was diagnosed with dementia. The NSW Trustee was appointed as Guardian (‘The Guardian’). The Guardian sought to permanently move her into an aged care facility.

The Guardian, to fund the wife’s care and expenses, wished to sell the de facto wife’s home. However, the problem was that the de facto husband opposed the home sale. The Guardian commenced property adjustment proceedings in the Family Court on behalf of the wife to resolve the dispute.

The Guardian’s position was that as the couple no longer lived together on a genuine domestic basis as required by section 4AA(1)(c) of the FLA, the de facto relationship had irrevocably broken down on the date when the de facto wife moved to the aged care facility.

The High Court held that the Guardian’s position was:

…contrary to the text, statutory context and the purpose of section 4AA and contrary to real word considerations, stating that it would be an ‘injustice if two people who live apart (including for reasons of health) were incapable of remaining in a de facto relationship…

Therefore, while the de facto wife needed to move permanently into an aged care facility due to her mental and physical incapacities and needs, which may have contributed to the breakdown of the relationship, it was not determinative.

The relationship was accepted to have broken down when:

…the de facto husband began to act as if he was no longer bound by the parties’ cohabitation agreements and no longer made ‘necessary and desirable adjustments’ but acted contrary to the wife’s needs…


What does the Fairburn decision mean for de facto couples?

Notably, the High Court of Australia’s decision in Fairbairn indicates that parties living apart may constitute a de facto relationship if there remains a commitment to a shared life together. Separation involuntarily or mental incapacity alone will not be a determinant of the breakdown of a de facto relationship!

Types of conduct that contribute to the indication that the parties are no longer committed to sharing a life include:

  1. acting contrary to the other party’s interests;
  2. no longer making ‘necessary and desirable adjustments’ for the other party;
  3. acting in conflict with cohabitation agreements; and
  4. behaviours that show an intention to stop the joint commitment to a shared life may evidence the breakdown of a de facto relationship.


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?


What does the law say about de facto relationships?

Unlike other States, Western Australia has retained its State-based jurisdiction in relation to property law 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:

  1. the de facto relationship has existed for at least 2 years; or
  2. 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
  3. 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:

  1. The length of the relationship;
  2. Whether the couple have lived together;
  3. The nature and extent of common residence;
  4. Whether there is, or has been, a sexual relationship between the couple;
  5. The degree of financial dependence or interdependence, and any arrangements for financial support, between the couple;
  6. The ownership, use and acquisition of their property;
  7. The degree of mutual commitment by them to a shared life;
  8. Whether they care for and support children; and
  9. 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 help the court to reach its determination.


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 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.


Case-by-case basis

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.


If you are not sure whether you are in a de facto relationship and the impact this may have on your finances, please call us now on (08) 9381 0208 or fill out this form to schedule your first 30-min free telephone appointment. We are family lawyers clients know will give them all the possible angles.

Posted in: Family Law  Property & Financial  Separation & Divorce