Are We De Facto?

Considerations of the Family Court of Australia

Definition of De Facto Relationship

Since 2009, the Federal Circuit Court of Australia and the Family Court of Australia have had the power to make Orders for couples who have been married and for couples who have had a de facto relationship.

A de facto relationship is defined in the Family Law Act 1975 as a relationship whereby the parties have had ‘a relationship as a couple living together on a genuine domestic basis'.

The Family Law Act 1975 gives several examples of how to ‘work out’ if a relationship was de facto. These examples include the length of the relationship, the extent of the couple’s common residence, the degree of financial dependence or interdependence, the sexual nature of the relationship, and the degree of mutual commitment to a shared life.

Somers & Collier [2017] FAMCAFC123

A recent decision by the Full Court of the Family Court draws light on what it means to live together on a genuine domestic basis.

In first instance, the trial judge held that the parties were not a de facto couple as there was insufficient evidence to demonstrate that the parties had ‘mutually committed to a future shared life together’. In short, the parties had not lived together on a genuine domestic basis.

In this case, the parties had maintained a personal relationship for over a decade, sustained a monogamous sexual and romantic relationship, lived together for a 20 month period, and had even invested in property together.

However, upon closer examination the trial judge found that the parties lacked financial interdependence and commitment to the relationship. In particular: 

• The parties chose to live independently for the bulk of their relationship;
• The parties mostly occupied separate bedrooms during the period they lived together;
• The parties independently purchased properties, without financial contribution by the other;
• The property and monetary transactions undertaken between the parties were of a commercial nature;
• The parties did not list each other as a ‘partner’ on any third party notification, for example either of their Tax Returns or Health Insurance Certificates.

The decision by the trial judge was upheld on appeal to the Full Court of the Family Court of Australia.

A relationship must first fall within the meaning of ‘de facto’ pursuant to the Family Law Act 1975 before any subsequent considerations can be made by the Court. The relationship between Somers and Collier did not meet this threshold. By determining that there was no de facto relationship both the Federal Circuit Court and the Full Court of the Family Court held that they did not have jurisdiction to make any Orders in relation to division of the parties’ assets.

What This Means

To establish a de facto relationship, the Court must be satisfied that both parties were ‘mutually committed to share a future together’. Characteristics of a ‘mutually satisfying relationship’, like the relationship of Somers and Collier, will not be sufficient to demonstrate the level of commitment the Court requires for a relationship to be considered 'de facto'.

If required to determine if a relationship was in fact de facto, the Court will consider all of the circumstances of the relationship.

For personalised and confidential advice about your rights following the breakdown of your relationship, please contact our family law team.