In Australia, we often hear couples describe their relationship as “de facto”. Many people are in fact already in a “de facto” relationship without realising it, assuming they are not subject to family law. So what exactly is a “de facto” relationship? “De facto” means a “relationship in fact” — the couple has not registered a marriage, but where certain facts and conditions are met, all the rights and obligations between them are equivalent to those of a married couple. This means that once the parties are found to be in a de facto relationship, they stand on the same footing under family law as a married couple and may lawfully participate in matters such as property division and spousal maintenance (maintenance order).

Unlike the law in China, and interestingly, under the Australian Family Law Act 1975 (Cth) s 4AA(5), a person can lawfully be in a formal registered marriage (legally married) and a de facto relationship at the same time. For example, A may be legally married to B and at the same time be in a lawful de facto relationship with C. In addition, one person can be in multiple de facto relationships at the same time. For instance, while A and B are in a de facto relationship, A may also be in a de facto relationship with C. Furthermore, a de facto relationship can exist between opposite-sex couples as well as same-sex couples.

So what is considered a de facto relationship? Let’s take a closer look at what counts as de facto in Australia.

What is the definition of de facto?

First, under Family Law Act 1975 (Cth) s 4AA(1), the definition of a de facto relationship is:

1. The two people are not legally married to each other; and

2. The two people are not related by family; and

3. Having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis. In other words, the nature of the relationship must be assessed to distinguish whether the two people are merely dating, are ordinary boyfriend and girlfriend, or are housemates, as opposed to a couple intending to build a shared domestic life.

Factors the court considers when deciding whether a de facto relationship has been established

Generally, when determining whether the parties have established a de facto relationship, the court will consider the following factors:

1. The duration of the relationship

– Ordinarily, to apply for property division or spousal maintenance under family law, the de facto relationship must have lasted at least two years.

– In certain circumstances — for example, where the parties have registered their de facto relationship with a state or territory, where there is a child of the relationship, or where the court is satisfied that the applicant has made significant contributions to the relationship and that failure to make an order regarding property or maintenance would result in serious injustice — the de facto relationship may be less than two years.

2. Whether the parties have a common residence; if so, what is the nature of that common residence?

– Whether the parties cohabit is a relevant factor, but in some cases the length or frequency of cohabitation is not decisive.

3. Whether a sexual relationship exists between the parties?

– A sexual relationship between the parties tends to support the existence of a de facto relationship.

4. The degree of financial dependence or independence between the parties

– Do the parties share living expenses (bills, everyday shopping, lease, etc.)? Do they have a joint bank account? Where the parties’ finances are interdependent and shared rather than each paying their own expenses independently, the court will generally treat this as a factor supporting a de facto relationship.

5. The ownership, use and acquisition of property between the parties

– Evidence that the parties jointly hold ownership or rights of use over property such as a house or motor vehicles further supports the existence of a de facto relationship.

6. The degree of mutual commitment to a shared life between the parties

– Is this mutual commitment to a shared life recognised by one party only, or by both parties?

– In Meadows & Medved [2018], after considering all the relevant evidence, the court found that only the woman had the intention of sharing a life together, while the man had never expressed such intention, and therefore held that the parties had not reached a mutual commitment.

7. Have the parties registered their relationship under a state or territory law?

– It should be noted that even if the parties have registered their de facto relationship with a state or territory, this does not automatically mean that a de facto relationship will be found to exist under family law. Under family law, whether the relationship has been registered as a de facto relationship is only one factor in determining whether a de facto relationship exists.

8. How is the relationship viewed by the public?

– In short, how do people around the parties view the relationship? For example, if the relationship is a “secret romance” known to no one outside the couple themselves, it will be difficult to find anyone able to corroborate the existence of a “de facto” relationship on this factor.

Case study: Jonah v White

Facts

This was an appeal. At first instance, the court held that a de facto relationship between Ms Jonah and Mr White had not been established. Ms Jonah appealed.

Factors considered by the court

The court in this case considered the following factors:

– The parties had separate residences;

– Mr White had his own family;

– The parties’ relationship was “secret”, so it rarely enjoyed a reputation as a “de facto couple” or “partners” in the public eye;

– They did not have a joint bank account;

– They had no joint investments or jointly acquired property;

– Mr White rarely participated in Ms Jonah’s life in Brisbane;

– Although the trial judge was aware that a person can be in a marriage and a de facto relationship at the same time, the Full Court held that what the trial judge had considered in reaching the decision was the quality of the relationship rather than the time the parties had spent together, and therefore held that the trial judge had not erred;

– In addition, Ms Jonah argued that there was extensive emotional communication between the parties sufficient to support the existence of a de facto relationship, but the court held that “emotional communication” alone is insufficient to establish the “living together” requirement of a “de facto relationship”.

The decision in this case

The Full Court upheld the decision at first instance and, having considered all the relevant facts and factors as a whole, held that a de facto relationship between the parties had not been established.

Conclusion

Whether a de facto relationship is established has a significant impact on issues such as property division and spousal maintenance after a couple separates. Determining whether a de facto relationship exists requires the consideration of many factors, and no single factor is decisive. In practice, the court will exercise its discretion based on the particular facts of each case.