WHAT IS A DE FACTO RELATIONSHIP?
A de facto relationship means that you and your partner have been living together as a couple on a ‘genuine domestic basis’ for a period of at least two years (some exceptions do apply to this).
HOW DOES THIS DIFFER FROM BEING MARRIED?
In Australia, one of the main differences between de facto relationships and marriage used to be that marriage excluded same-sex couples. However, since 9 December 2017, same sex couples have been legally allowed to marry in Australia.
Today, being married means that you must have be married by an authorised celebrant and:
- Be of marrying age;
- Not be married to anyone else; and
- Not be in a prohibited relationship
There are some differences that come up in de facto relationships compared to married couples when it comes to de facto property settlement. This will be discussed in this article.
WHAT DOES IT MEAN TO BE IN A DE FACTO RELATIONSHIP?
Being in a de facto couple means that:
- The persons are not legally married;
- 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.
WHAT DOES IT MEAN TO BE A COUPLE LIVING TOGETHER ON A GENUINE DOMESTIC BASIS?
There is no set rule for what will count as a de facto relationship. Instead, several different factors will be looked at to determine whether or not the couple were living together on a genuine domestic basis. These include:
- The duration of the relationship;
- Whether a sexual relationship existed;
- Whether there are any children of the relationship;
- The extent and nature of shared residence;
- The degree of financial dependence between the parties;
- The degree of mutual commitment toward a shared life;
- The reputation and public aspects of the relationship; and/or
- Ownership, use and acquisition of the parties’ property.
None of above factors carry more weight than the other, and the existence of your de facto relationship will be determined by looking at all of the factors as a whole.
Matthews v Sullivan 
In the case of Matthews v Sullivan, Mr Matthews and Ms Sullivan have been living in the same share house with two other people for the past 5 years.
For the past 3 years, Mr Matthews and Ms Sullivan commenced a romantic relationship, in which Ms Sullivan would sleep in the same bed as Mr Matthews, and the couple commenced a sexual relationship. They would also do household chores together and socialise together.
When the romantic relationship ended and Ms Sullivan decided to move out, Mr Matthews claimed the couple had been in a de facto relationship while Ms Sullivan claimed no such relationship exist.
The federal magistrate who heard the matter dismissed the application on the basis that the evidence did not support a conclusion that the parties had been in a de facto relationship.
HOW LONG DO I HAVE TO HAVE BEEN LIVING WITH MY PARTNER FOR IT TO BE DEEMED A DE FACTO RELATIONSHIP?
In order to be considered a de facto couple, you need to have:
- Lived in a de facto relationship with the other party for at least two years; or
- You lived in a de facto relationship for less than two years but-
- there is a child of the relationship under the age of 18 years and failure to make orders would result in serious injustice to the party who is caring or responsible for the child; or
- the partner applying for the order has made substantial financial, non-financial or homemaker/parent contributions and failing to make orders would result in serious injustice.
If you have been in a relationship for less than 2 years but think that serious injustice would result from the courts not recognising your relationship, speak to one of our family lawyers for advice.
DO I NEED TO PROVE I WAS IN A DE FACTO RELATIONSHIP?
Yes. This is one of the main differences between being married and in a de facto relationship.
If you were in a de facto relationship and want to apply to the Family Court of WA, then you need to file a document either swearing or affirming that you were in a de facto relationship and setting out the circumstances of that relationship. This document is called an affidavit.
HOW ARE DE FACTO SEPARATION ENTITLEMENTS DIFFERENT TO MARRIED COUPLES?
At the moment, de facto couples in Western Australia have the same separation entitlements as married couples, except in regard to superannuation splitting. s
Since 2009, every state and territory in Australia has allowed for superannuation splitting between de facto couples except WA.
However, in late 2019, the federal government introduced legislation in parliament allowing for de facto couples in WA to split their superannuation.
IS ANYTHING ELSE DIFFERENT TO MARRIED COUPLES?
Period of separation
For married couples, they must be separated for at least 12 months before they can apply for divorce. De facto couples obviously cannot apply for divorce.
A limitation period is the amount of time you have to apply to the court after your relationship breaks down. For married couples, the limitation period is 12 months after divorce. For de facto couples, this is 2 years after the date of separation.
For further advice and information about your rights and entitlements, please feel free to contact us to book an appointment with one of our family and divorce lawyers.
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The family law team at MKI Legal can assist you with any questions about your family law matter, separation, splitting your assets or your children. We can help you make the right decision on what to do next.