There are many ways couples can be in a relationship, such as marriage, or cohabiting. However, when it comes to how a relationship is regarded legally, the individuals can be unclear where they stand. This is where family lawyers can help explain, and if need be, represent one, or both of the parties, should any legal need arise.
One type of relationship which seems to create more than its fair share of confusion is a de facto relationship. The literal translation of de facto from Latin to English is ‘in fact’. When the phrase is used in legal terms, it can refer to situations that exist, but which are not normally recognised as such.
In Australia, the definition of a de facto relationship has been with us for over 45 years. In 1975, a Family Law Act passed into law which stated that a de facto relationship is one where the individuals, whether they are of the opposite sex or the same sex, have lived together on a domestic basis as partners.
A de facto relationship can also be legally established if a couple meets the necessary criteria, but one of them happens to be married to someone else at the time. To add even more confusion into the mix, that same principle applies if one of the individuals is deemed to be in a de facto relationship with someone else.
One of the main reasons that the definition was prescribed in law was to grant protection to each partner, similar to those of married couples. Examples are, should the relationship ever end, and a dispute arose, or if two people needed to prove they were living together as a couple, for other legal reasons.
Whilst it might seem that the basic definition is relatively simple, as, with many aspects of law, there are a number of factors that have to be assessed and evaluated in order to classify a relationship as de facto. These factors are as follows:
- Whether the couple had been married
- Whether the couple had a sexual relationship
- How long the couple lived together, and in particular, if the couple had lived together for more than two years.
- Whether the couple had any children
- The level of financial reliance that existed between the two parties
- The circumstances related to the shared residence, for example, did they jointly own it
- How the relationship was regarded by others, including public officials
- The level of commitment there was mutually towards their shared relationship and life together
Now you will see that some of the answers to those questions will be specific and not subject to any opinion, such as whether the couple had any children or not. But there are others that are subjective, such as the level of commitment to living together for life, as that doesn’t have a yes or no, or an easily quantifiable answer.
Another aspect of this assessment is that courts will not necessarily take all of them into account when determining whether a de facto relationship exists, nor do any of the questions carry more influence or weight than any of the others.
As you can see, compared to married couples, who can simply produce a marriage certificate to prove the legal a standing of their relationship, those in a de facto relationship have to walk through more of a legal minefield.
This is why those who wish to prove the existence of their de facto relationship should consider seeking the advice of legal professionals