Are you in a defacto relationship?
Under the Family Law Act (since 2009) defacto couples have the same rights as married couples to seek a property settlement or spouse maintenance payment when they separate. So, the question is, how do you know if you are in a defacto relationship?
Firstly, the couple needs to have been in a “genuine domestic relationship.” There are various indicators as to whether that is the case, some of these indicators include:
- The duration of the 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;
- The degree of mutual commitment to a shared life;
- The care and support of children (if there are any); and
- The reputation and public aspects of the relationship.
If there is a “genuine domestic relationship”, then one of the following needs to exist, i.e.:
- The couple had been in the relationship for at least 2 years; or
- There is a child of the relationship (in which case there is no time requirement); or
- It would be unjust not to recognise a defacto spouse’s financial or non-financial contribution.
Can a defacto relationship exist if the parties are not living together?
A recent case from the Federal Circuit Court considered an application for a property settlement where the parties had a child together but had not lived together. The facts involved two friends, who after a one-off sexual encounter discovered that the female (the applicant in this case) was pregnant.
During the time prior to the birth of the child, the parties had spent time together and this had included sharing meals and spending time socialising. There was evidence that the parties had spent two nights together, but otherwise had maintained their own separate residences.
Following the birth of the child, the respondent father ceased all communication with the applicant and the child, even refusing to sign the child’s birth certificate.
As there was a child of the relationship, the parties were not obligated to satisfy the requirement that the defacto relationship was of at least two years duration.
The judge highlighted the need for a “genuine domestic relationship”, noting the difference between parties merely “dating.” Taking into consideration the overall circumstances that the parties had been in, the judge was not satisfied that the parties’ relationship could be regarded as a “defacto relationship”. The applicant’s application was, therefore, dismissed.
If you need advice on a defacto property settlement, please contact Michael Lynch Family Lawyers on (07) 3221 4300 or [email protected].
