You are in a de facto relationship with another person if you are both not legally married to each other but you have a relationship as a couple living together on a genuine domestic basis. This is an important definition if your relationship ends and you need to divide your assets and/or access spousal maintenance.
A de-facto relationship can exist between two persons of the same sex or of different sexes and can even exist when one person is legally married to someone else or in another de-facto relationship.
In the case of Meyvans & Kempton  FCCA 1845 (9 July 2019) (“Meyvans & Kempton”), the court considered the criteria outlined above, particularly focusing on the mutual commitment to a shared life and the duration of the relationship.
For your ease of reading, we have given the Applicant and the Respondent fake names.
In this case, the Applicant ("John") sought a declaration that he and his partner ("Jane") were in a de facto relationship for three years and one month. Jane claimed that a de facto relationship did not meet the two-year threshold and only existed for approximately nine months.
The length of the relationship is particularly important because, under s90SB of the Family Law Act 1975 (Cth), a Court may make an order in relation to spousal maintenance or alteration of property interests only if the Court is satisfied that:
The combination of the above facts allowed His Honour Judge Howard to find that there was a de facto relationship between the parties.
He found that Jane continually tried to downplay the extent of time that the parties spent together and lived together.
His Honour was satisfied that the parties were living together as a couple on a genuine domestic basis and were in a de facto relationship during the time they resided together, apart from the one week of temporary separation.
He referenced a previous decision of Murphy J in Jonah v White (2011) 258 FLR 236 in which His Honour stated:
"the issue, as it seems to me, is the nature of the union rather than how it manifests itself in quantities of joint time. It is the nature of the union - the merger of two individual lives into life as a couple that lies at the heart of the statutory considerations…"
If you’re in a de facto relationship and considering separating (or have separated), it’s important to be aware of the various factors that will contribute to how your relationship is defined and what effect that may have on future maintenance and property settlement.
If you require any assistance, our family lawyer Bridget can help clarify whether a de-facto relationship exists in your individual circumstances and assist you with any of your family law needs.
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This article is of a general nature and should not be relied upon as legal advice. If you require further information, advice or assistance for your specific circumstances, please contact E&A Lawyers.
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