What is a de facto relationship? It’s complicated.

Andrew McCormack

“When does a de facto relationship start?”, is a question I often get asked. The reason that it is a common question is that there are different definitions for different purposes.

There have never really been any hard and fast rules about when people are in a de facto relationship.  Courts have determined that to be in a de facto relationship, two people must be living together on a “genuine domestic basis”.  However, living together under the same roof is a bit of a misdescription.  There have been, as a result of the unique circumstances of the case, findings that couples were in a de facto relationship even though they were not living under the same roof.  See, it really is complicated.

There are a number of factors that can be used to determine you are in a de facto relationship.  These include:

  • The duration of the relationship;
  • The nature and extent of common residence;
  • Whether a sexual relationship exists (or existed);
  • The degree of financial dependence on each other and the financial support that has occurred;
  • Whether there has been any property (real estate or other assets) that have been purchased together;
  • Whether there was a degree of mutual commitment to a shared life;
  • Whether the general public believed that people were in a de facto relationship; and
  • Whether there were children of the relationship and the care arrangements for the children.

In making a determination about whether a relationship exists, a Court does not have to find that all of the criteria mentioned above exist for it to make a declaration that a relationship existed.  A Court can use its discretion and give weight to the factors it thinks are appropriate when making this type of determination.

Registering a relationship

In Queensland, the Civil Partnerships Act 2011 allows two people (regardless of their gender) to have their civil partnership or de facto relationship recognised and registered.

To enable this to occur, two adults can apply to the Registrar of Births, Deaths and Marriages to have their relationship registered.  This can occur as part of a commitment ceremony with a civil celebrant or simply by lodging the necessary forms to have the relationship registered.

By registering a relationship, this gives legal recognition to the fact that the relationship started on specific date.  If they later separate, one of the parties to the civil partnership or de facto relationship can apply to the Registrar to record when it ended.

Centrelink

Centrelink needs to know when you are a “member of a couple”.  This is because any benefit that you might receive can be paid differently if you are in a relationship as your partner’s income is taken into consideration when they calculate what rate your benefits are paid at.  Centrelink have their own procedures for telling them when a relationship has started or finished. Visit the Department of Human Services website here to find out more.

More than one relationship can co-exist

It can be the case that multiple de facto relationships can exist at the same time. This might be as a result of a polyamorous relationships or the case that someone who is legally married might also be in a de facto relationship at the same time. Traditional polygamous marriages from different cultures can fall into this situation.

This means that persons in these circumstances can make claims for property settlement.  There are a number of cases where Courts have had to deal with the property settlement of a married couple at the same time as the property settlement for between one the parties to the marriage and their former de facto partner.

Estate planning and de facto relationships

A de facto partner can have a claim on your estate even if you have not made provision for them in your Will.

A de facto partner falls into the category of people who can make a family provision claim to ensure that they are properly provided for after death.  This is sometimes mistakenly referred to as “challenging a Will”.  All states and territories have legislation that ensures that spouses (married or de facto) and dependents are properly provided for after the death of a spouse.

It’s a good idea to update your Will, Power of Attorney, and Advanced Health Care Directive when you start or end a relationship.  You don’t want to find yourself in a situation where someone you no longer are in a relationship with, or that you no longer care about, has the right to make important decisions about if you have lost capacity.

Our team of family law lawyers in Brisbane, Ipswich, Toowoomba and North Lakes are available to assist in de facto parenting and property matters. Contact one of our offices today to make an initial appointment.