By Georgia Spencer
In a world where societal norms are undergoing a rapid transformation, the institution of marriage finds itself at the centre of a captivating and dynamic narrative. Relationships are now forging new paths, venturing into uncharted territories that defy convention and challenge our perception of traditional unions.
Enter the increasingly popular de facto relationship, which, under Australian family law, bears striking resemblance to its matrimonial counterpart. Georgia Spencer, Solicitor at Orbell Family Lawyers (located in Erina) provides an overview on how family law recognises de facto relationships, and how to know if you are in one. Australian family law encompasses both marriage and de facto relationships, revealing their similarities and shared legal framework. Did you know, these two forms of commitment operate under the same laws and are dealt with by the same Court?
Decoding Marriage v De Facto: Legal Distinctions
On the one hand, marriage involves a formal contract, and is defined as ‘the union between two people to the exclusion of all others, voluntarily entered into for life’. On the other hand, a de facto relationship is ‘a couple that it not married, are not related but are living together on a genuine domestic basis’. While seemingly straightforward, this definition holds hidden depths with multiple factors that can be scrutinised to determine whether you are in a de facto relationship. The following will be considered:
- Common residence: the nature and extent of shared living arrangements;
- Public perception: recognition of the relationships by others (do friends and family know you’re living together as a couple)
- Financial interdependence (such as joint accounts and sharing expenses)
- Mutual commitment and dedication to a shared life
- Whether you share children (or provide care for each other’s children)
- Nature of the household (do you share a bed or bedroom)
- Future plans and aspirations as a couple (are there aligned goals for the future as a couple?)
Importantly, you do not need to say ‘yes’ to all of the above criteria. Family law is complex. Every relationship is unique, and it is not reasonable to compare the breakdown of your de facto relationship with someone else’s.
We don’t live together so we can’t be de facto, right?
Contrary to common beliefs, living with your partner full–time is not an absolute requirement. In fact, the concept of “living together” encompasses a broader understanding that accommodates varying circumstances. Provided you can show that there is a ‘merging’ of lives within a genuine domestic context, this may be enough to show that your relationship is de facto. Importantly, the Court has also recognised that being away from the home due to family or work commitments (FIFO workers, we’re looking at you), does not mean that your lives are not ‘merged’. The list of factors to consider is long, so it’s important you speak to an experienced family lawyer ASAP!
A few practical tips that all partners to a de facto relationship should know:
- Keep records and documents to show you are in a de facto relationship. Things may be great at the moment, but you never know what might happen. It’s always a good idea to take proactive steps now just in case something happens in the future
- There is a 2–year limitation period on claims. This means that after the breakdown of your de facto relationship you should get legal advice as ASAP. You don’t want to run out of time to get what you are entitled to.
As societal norms continue to shift, the recognition of de facto relationships evolve accordingly. It is essential to understand the nuances and legal criteria surrounding these relationships, as they can have significant implications in matters of property and asset division. So, if you’re unsure about your relationship status, it’s best to seek professional advice and navigate the intricacies of family law with clarity and confidence.
Liability limited by a scheme approved under Professional Standards Legislation. The information contained in this article is provided for information purposes only and should not be construed as legal advice.