A person is in a de facto relationship with another person if:
- The persons are not legally married to each other; and
- The persons are not related by family; and
- Having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
For the purposes of the Family Law Act a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex. Further, a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship. Accordingly, a de facto relationship is a relationship between two people who are not married but live together as a couple on a ‘genuine domestic basis’.
A de facto relationship can exist between 2 people of the opposite sex, or between 2 people of the same sex.
There are a number of circumstances of each relationship which will help determine whether a couple are living within a de facto relationship, namely:
- The duration of their relationship;
- The nature and extent of their common residence;
- Whether a sexual relationship exists;
- The degree of financial dependence or interdependence, and any arrangements for financial support, between them;
- The ownership, use and acquisition of their property;
- Their degree of mutual commitment to a shared life;
- Whether the relationship has been registered, in a State or Territory with laws for the registration of relationships;
- The care and support of children of the relationship; and
- The reputation and public aspects of their relationship.
The new laws apply to de facto relationships that break down on a final basis after 1 March 2009. If the de facto relationship ended prior to 1 March 2009 the law within the relevant State or territory will apply to the adjustment of de facto property.
However, if separation occurs prior to 1 March 2009, parties can make an election (after obtaining independent legal advice) to have their matter determined pursuant to the Family Law Act rather than under the relevant State or Territory law. However, both parties will need to make this election to this.