A De Facto Relationship

Definition

Australian law defines the term ‘a de facto relationship’ as a relationship between ‘a man and woman who, although not legally married to each other, live together as husband and wife on a bona fide domestic basis’.[1] That is, a de facto relationship exists when the party and his/her former partner, irrespective of gender, were in a relationship as a couple residing together on a genuine domestic basis. However, Australian law denies a relationship as a de facto relationship if the individuals were lawfully married to one another or if they are related by family.

In order to determine that a relationship is a de facto relationship, it is incumbent on the parties to make an application to the court. The application can be made either to the Family Court or Federal Circuit Court. In practice, such application is usually made when an actual relationship has broken down and the parties are aiming at having financial disputes determined in the same manner as between married couples. In order to apply for a de facto financial order, such application must be filed within two years of the breakdown of the relationship at issue. In order to obtain a favourable de facto relationship order from the court, the applicant must prove before the court existence of the following facts:

  • There was a genuine de facto relationship with the former partner which has broken down
  • There is one of four possible getaway criteria, such as: a) the period for the de facto relationship was at least 2 years; b) there is a child in the de facto relationship; c) the relationship in question is or was registered in accordance with a prescribed law of an Australian State or Territory; and d) when assessing property or custodial claims in cases of a breakdown of a relationship, it is recognized that substantial contributions were being made by one party and the failure to render an order would result in a serious injustice.
  • There must be a geographical connection between the applicant and a participating jurisdiction.
  • The relationship broke down after a statutory period of time.

Specificities of legal regulation of a de facto relationship

The Australian Constitution grants the Commonwealth power to legislate with regard to marriage and divorce. Under this power it has enacted the Family Law Act 1975, which creates the Family Court of Australia and regulates the financial and other consequences of marriage breakdown. The Commonwealth’s power does not extend to de facto relationships, which accordingly remain subject to State law. Under Australian state law, de facto partners and married individuals are placed in the same position for the purpose of claiming pensions and benefits.[2] That is, if a woman lived with a man in a de facto relationship for at least three years prior to his death and was maintained by him, she may be eligible for a widows’ pension. The legislation also particularly states that de facto partners should not be treated more favourably that married couples in determining their eligibility for social security. On the other hand, the Anti-Discrimination Act 1977 (NSW) prescribes that discriminatory provisions of employment on the grounds of a person’s ‘marital status’ are unlawful.[3] Also, the Worker’s Compensation Act 1926 (NSW) regulates that the surviving de facto partner of a worker who dies as the result of a work-related injury is entitled to compensation if he or she was wholly or partly dependent for support on the worker at the time of the death.[4] In like manner, the Family Provision Act 1982 permits the de facto partner of a decease individual to apply to a court for a share in the estate of the deceased person, irrespective of whether or not the deceased individual left a will.[5]

 

[1] De Facto Relationships [1983] NSWLRC 36, p. 13.

[2] Social Security Act 1947 (NSW).

[3] Anti-Discrimination Act 1977 (NSW).

[4] Worker’s Compensation Act 1926 (NSW).

[5] Family Provision Act 1982 (NSW).