Am I in a de facto relationship?

De facto couples in Australia have substantially the same rights and entitlements as their married counterparts. Whether you are entering into, currently in or were in de facto relationship can therefore be a significant consideration when determining if you need to take steps to protect your assets before or during the relationship or what comes next if you separate.

Western Australia is the only state or territory that did not refer its powers to legislate regarding de facto couples to the Commonwealth (save for superannuation matters which occurred recently). This means Western Australia de facto couples are governed by different legislation, being the Family Court Act 1997 (WA), to other de facto couples across the country (although these largely mirror each other). This post will consider the position in Western Australia.

A de facto relationship is defined as a relationship between two people who “live together in a marriage-like relationship”. It does not matter whether they are different sexes or the same sex or if either of them are legally married or in a de facto relationship with someone else.

No single factor (including residing together) will give rise to a de facto relationship, rather the nature of the relationship as a whole must be considered.

The factors to be considered when determining whether a de facto relationship exists generally include:

1. length of the relationship;

2. whether the parties resided together;

3. nature and extent of common residence (if any);

4. existence of a sexual relationship;

5. degree of financial dependence or interdependence and any arrangements for financial support;

6. ownership, use and acquisition of the property of each of the parties and jointly;

7. degree of mutual commitment to a shared life;

8. whether the parties care for and support children;

9. reputation and public aspects of the relationship.

Each factor will receive different weight as appropriate in the given matter.

The existence of a de facto relationship is one of the critical matters in enabling the Court to deal with a financial matter, such as property settlement or maintenance. Parties must apply to the Court within the 2 year limitation period after the end of the relationship, otherwise they will require consent of the other party or permission from the Court on the basis of hardship to do so.

It is not as significant in parenting matters as the Court may automatically deal with children of unmarried couples provided other jurisdictional requirements are met.

If you require assistance with determining whether you are or were in a de facto relationship and what that may mean or any other aspect of your family law matter, please contact us today on (08) 6313 9070 to arrange an initial consultation.

This is general information and not intended as legal advice.