It is not uncommon to hear very different things that your friends or family may have heard – such as, ‘Once you’ve lived with someone for 2 years’, it’s a de facto relationship, or ‘I read online that once you’ve lived with someone for 6 months it’s a de facto relationship’.
The truth is, in a family law context, and for the purposes of seeking a property settlement after the irreconcilable breakdown of a relationship, the length of time two people have lived together is only one factor that a court considers.
Definition of de facto relationship – Family Law Act 1975
If the following three criteria are met:
1. The persons in a de facto relationship are not married to each other; AND
2. The persons in a de facto relationship are no related by family; AND
3. Having regard to all circumstances of the relationship, they are living together as a couple on a genuine domestic basis,
Then the relationship would fit into the meaning of de facto under the Family Law Act.
What does ‘living together as a couple’ mean?
The legislation provides further details as what other circumstances of the relationship should be considered:
1. The duration of the relationship
2. The nature and extent of common residence
3. Whether a sexual relationship exists
4. Any degree of financial dependence, interdependence, or arrangements for financial support
5. Ownership, use and acquisition of property
6. Degree of mutual commitment to a shared life
7. If the relationship has been registered under a State law
8. Care and support of children
9. Reputation and public aspects of the relationship.
It is not required that the court makes a finding on each single circumstance set out above.
Where does the 2 years come from?
Where one party to a de facto relationship asks the court to make a property Order (such as for spousal maintenance, or altering interests to property owned by the parties solely or jointly), the court must be satisfied of any of the following:
1. The period, or total of the periods, of the relationship, is at least 2 years; OR
2. There is a child of the de facto relationship; OR
3. The relationship was registered under a State/Territory law; OR
4. The party who applies for property Orders:
1. Made substantial contributions AND
2. Failure to make Orders would result in serious injustice to the applicant.
Therefore, whilst 2 years is explicitly mentioned in section 90SB of the Family Law Act, there are many cases where the courts have found that a de facto relationship did exist, where the length of cohabitation was less than two years. So though it may be a useful starting point in assessing what the court’s ultimate view may be, in deciding whether to make property Orders, the length of a relationship is certainly not the be all and end all in relation to establishing the existence of a de facto relationship.
Two step approach: Substantial contributions & serious injustice – both must be present
Contributions in a family law context include both financial and non-financial, and direct and indirect. Determining whether one party made substantial contributions is a subjective test to be applied in the whole of the circumstances surrounding the parties to the de facto relationship, and contributions made in that context.
An example may be a large lump sum of money, such as $50,000, however it could also be a sum of $5,000, where the financial circumstances of the parties are modest and balanced with other contributions.
If the court finds there were substantial contributions, it then goes on to determine whether the Applicant has proved, on the balance of probabilities, that failure to make a property adjustment Order would result in a serious injustice to the Applicant.
What the court considers here can include the overall property pool, and contributions made by the Respondent during the relationship. For example, where an Applicant lived in accommodation rent free, or provided financial support during a de facto relationship, contextual substantial contributions may be offset and the court will hold that no substantial injustice would occur, based on benefits received during the relationship: Dover & Mosely & Anor .
In Volpe & Stark , the parties had lived together for 13 months. However, the Applicant contributed $224,000 toward the acquisition of a jointly owned property (with the balance financed by way of mortgage), and the Respondent held an additional property prior to the relationship in his sole name. The Applicant sought to retain the property they had purchased together jointly. The court held that a serious injustice to the Applicant would result unless Orders were made.
There are many factors that are considered if a court is asked to determine whether a de facto relationship exists, and to alter property interests after the break down of such a relationship. As the matters can be complex, you should obtain legal advice if you are seeking to claim or deny a relationship and determine what your entitlements may be.