The number of divorces in Australia has risen in recent years – according to the Australian Institute of Family Studies, the total number of divorces granted in 2021 was 56,244.  This was the highest number recorded since 1976, the year that no-fault divorce was introduced.  People in relationships may be sceptical of marriage due to the spectre of divorce and the legal consequences that go along with it. However, the popular understanding of marriage as the definitive step in a relationship, giving rise to potential legal ramifications is inaccurate.  De facto relationship law may allow for a property settlement or spousal maintenance claim even if you and your partner were not legally married.

What is a de facto relationship?

Under the Family Law Act 1975 (Cth) two people are deemed to be in a de facto relationship if they are unrelated and unmarried but “have a relationship as a couple living together on a genuine domestic basis.” Legally, determining the presence of a de facto relationship can be a complex enquiry and the courts have previously found that a de facto relationship existed in cases where the couple had not been living together on a full-time basis.

Factors that point towards a de facto relationship

It is important to be aware of what actions may later be used by an ex-partner to argue that a de facto relationship existed.  The Family Law Act sets out a number of factors the court will consider, including the duration of the relationship, the degree of mutual commitment to a shared life and the public aspects of the relationship.  The court will not be confined to the list of factors in the Act and is entitled to consider any matter as may seem appropriate in the circumstances of each case.

In the Family Court decision of Martens & Bocca (2022) FamCA 1044, the Court looked at the frequency of communication, holidays taken together and public declarations of love and affection as actions by the couple pointing towards a de facto relationship.  Importantly, the Family Court in this case found that a de facto relationship had existed, irrespective of the couple only staying together on weekends.  Whilst there is no definitive standard and every case will be examined on its unique factual circumstances, it is important to note that actions such as calling your partner multiple times a day, may later be used to argue that a de facto relationship existed between you and your partner.

Protecting your assets

If the court finds a de facto relationship existed, under the Family Law Act the court may make an order for a property settlement or spousal maintenance if the court is satisfied that one of the following criteria is met:

  • The relationship existed for a period of at least two years; or
  • The couple has a child together; or
  • One party has made substantial contributions to the relationship (financial or non-financial); or
  • The relationship is or was registered under a prescribed law of a State or Territory.

If you are seeking to protect your assets and ensure future financial security, the best method is by entering into a binding financial agreement with your partner.  A financial agreement can set out how each party’s assets will be divided in the event that the de facto relationship breaks down.  The financial agreement will require the consent of your partner in order to take effect.

Another method of protecting your assets is by displaying through actions and statements a consistent intention to keep your assets separate from the assets of your partner.  Such an intention must be mutual and demonstrated by both parties in the relationship.

If are concerned in any way about the potential financial ramifications of de facto relationship law you should seek legal advice.  Every relationship is different and the courts will delve into the specific factual circumstances of the relationship, so it is important to receive advice addressing your unique position.  The dedicated team of family lawyers at Parke Lawyers offers expert advice, tailored to your specific situation and needs.