01/08/2011

There is no single test for deciding whether or not a couple are in a de facto relationship. The decision may well depend on the reason you need to know.

Supporters of marriage always call it “an institution”. But as the comedians point out – who wants to live in an institution? There are sufficient numbers of people who don’t want to get married to make “living together” a preferred status to formal marriage.

But when you’ve been ‘living together’ long enough you may become a virtual marriage – traditionally called “a de facto marriage” or “de facto relationship”.

In the old days such arrangements were disregarded by governments as being morally reprehensible. Whether it’s the governments or the morality that’s changed, they are no longer so considered and now most State and Commonwealth legislation that needs to do so mentions de facto relationships.

The problem is that there are so many pieces of legislation where the term ‘de facto relationship’ is used there is the real chance that the definitions differ for different purposes.

Here are a few FAQ’s about when and whether a de facto relationship exists.

1Q    Is there a standard definition of the term ‘de facto relationship’?

1A    No.  Definitions appear in the NSW Property (Relationships) Act, the Commonwealth Interpretations Act, the NSW Interpretations Act, the Commonwealth Superannuation Industry (Supervision) Act, the NSW WorkCover Act, the Commonwealth Family Law Act and the Commonwealth Social Security Act (although in the last case you become ‘a member of a couple’).  The term is used in the NSW Succession Act by reference to the definitions in the Interpretations Act.

2Q    When is a de facto relationship likely to exist?

2A    All the Acts except the SIS Act require that

• the couple are not legally married to one another
• they are not related by family, and
• they are living together on a genuine domestic basis.

The SIS Act requires that

• they have a close personal relationship
• they live together
• one or each of them provides the other with financial support; and
• one or each of them provides the other with domestic support and personal care
  

3Q    If two people live together for 2 years are they automatically in a de facto relationship?

3A    The 2 year rule is mentioned in s.90SB of the Family Law Act but is only one of a number of other criteria.  If the couple have a child or one of the parties has made a serious financial contribution to the relationship then the time may be reduced.  The 2 year rule does not appear in any other legislation although the duration of the relationship is a factor in all definitions.

4Q    What are the other criteria that the courts look at to decide?

4A    All the Acts share the following criteria to decide whether or not a couple are in a de facto relationship:

• the duration of the relationship
• whether a sexual relationship exists
• the ownership, use and acquisition of property
• the degree of mutual commitment to a shared life
• the care and support of children
• the reputation and public aspects of the relationship.
  

All of the Acts except the SIS Act include

• the degree of financial dependence or interdependence and any arrangements for financial support between the parties, and
• the nature and extent of common residence.
  

The SIS Act on the other hand refers to:

• the degree of emotional support
• the extent to which the relationship is one of mere convenience, and
• any evidence suggesting that the parties intend the relationship to be permanent
  

5Q    Can a couple be in a de facto relationship even if one of them is legally married to someone else?

5A    Yes.

6Q    If I am in a de facto relationship what are my rights?

6A    Your rights include at least the following but this list is not meant to be exhaustive.

1. You may be entitled to be considered in the Will of your deceased partner and to make a claim against the estate if you have not received a reasonable amount from that estate.
2. You may be entitled to a share of the intestate estate of the deceased partner (ie if they have not left a Will)
3. You may be entitled to compensation under workers compensation legislation if the deceased partner dies during the course of their employment
4. You may be entitled to social security as a spouse under the Social Security Act
5. You may be entitled to your partner’s death benefits from their superannuation fund
6. You may be entitled to a property settlement, maintenance, child support and child access rights under the Family Law Act following the termination of the relationship.

If you have any questions in regard to the above article, please contact TOWNSENDS BUSINESS & CORPORATE LAWYERS on (02) 8296 6222.