• Skip to main content
  • Skip to primary sidebar
  • Skip to footer

Phone: 3465 9332

Logo
  • Home
  • Our Team
    • Courtney Barton – Legal Practice Director & Founder
    • George Finn – Executive Director
    • Ellie Prior – Solicitor
    • Tenayah Miano – Paralegal
  • Our Services
    • Divorce Property Settlement Lawyers
    • Family Law Spousal Maintenance
    • Superannuation Splitting & Advice Lawyers
    • Child Custody Lawyers
    • Child Support Lawyers
    • Child Relocation Family Lawyers
    • Child Abduction Family Lawyers
    • Fixed Fee Consent Orders Brisbane
    • Binding Financial Agreements
    • Fixed Fee Divorce Lawyers
    • Domestic Violence Lawyer – DVO Domestic Violence Order
    • Child Adoption Lawyer & Advice
    • Family Court Process
    • Family Mediation Services Brisbane
      • Why Mediate with the Brisbane Family mediator?
      • Contact the Brisbane Family Mediator
      • Barton Family Mediation Costs & Processes
        • Barton Family Mediation Fixed Fees
  • Fixed Fees
  • Common questions
  • Family Law Videos
  • Family Mediation
  • Contact Us
  • Success Stories

Am I in a De Facto Relationship?

March 11, 2018 By Barton Family Law

Are you in a de facto relationship? Read on as we explain the factors the court considers in determining the existence of a de facto relationship.

A de facto couple has the same rights as a married couple. They may make a property settlement claim against the other when they separate.

These days, relationships come in all shapes and sizes. Are you unsure whether you are in a de facto relationship? Read on for more information as to at what point your girlfriend/boyfriend becomes your de facto partner.

Is my relationship a de facto relationship?

A De facto relationship exists where in all the circumstances, the parties have:

“ a relationship as a couple, living together on a genuine domestic basis”

There is however a considerable level of confusion as to when two people meet this criteria, due to uncertainty in relation to what the terms ‘living together’ and about what‘genuine domestic basis’ means.

There is a threshold requirement that the de facto relationship is for a period of at least 2 years. However, there are exceptions to this rule if there is a child of the relationship or if you have made a significant contribution and it would be unfair to bar you from making an application to the family court.

Relevant factors

In determining whether two people are in a relationship, as a couple, living together on a genuine domestic basis, the court may have regard to a number of factors under section 4AA of the Family Law Act, to be given such weight as the court considers appropriate, including how long the relationship lasted, whether they had a common residence, whether they had a common residence, whether they provided financial support to one another, whether they owned or used property together, whether they had a mutual commitment to a shared life, whether they cared for and supported children, and how they were known and seen by family friends and the general public, or whether their relationship was entirely secret, as is sometimes the case.

This last criterion was considered in the recent case of Sha & Cham.

Case Study: Sha & Cham [2017] FamCAFC 161

In late 2011, Mr Sha (who lived with his wife Ms B) met Ms Cham in a massage parlour where she worked as a sex worker. In early 2012, the parties began a sexual relationship and subsequently they discussed having a baby and Ms Chan stopped work at Mr Sha’s request. They began seeing each other at Ms Chan’s house where Mr Sha occasionally stayed the night. Mr Sha made regular payments each month towards Ms Cham’s mortgage and other living expenses.  They also entered into a section 90UC “Prenuptial’ Agreement during the course of a de facto relationship as to what would happen with the parties property in the event of a relationship breakdown. Ms Cham became pregnant by means of IVF treatment in September 2012 and Mr Sha and his wife (Ms B) separated in October 2012. The parties then had a child together in mid 2013. By November 2013, Ms Cham has signed a separation agreement triggering the operation of the 90UC Binding Financial Agreement.

Ms Cham then went to court to seek performance of the promises of Mr Sha in the Binding Financial Agreement. Mr Sha argued that the parties were never in a de facto relationship. The trial judge disagreed with him. Mr Sha appealed. He lost again.

The two grounds of appeal asserted by Mr Sha were:

  1. He erred in his finding that the parties shared a common residence at Ms Cham’s house ‘for relatively confined periods of time’;
  2. He erred in his finding that the parties were in a de facto relationship at the time of entering into the binding financial agreement.

Appeal Ground one – de facto relationship

On appeal, Mr Sha argued that there was no common residence between him and Ms Cham because he was still living with his wife. Nonetheless, the Full court found that Mr Sha’s attendance’s at Ms Cham’s residence were ‘regular and significant’ and concluded that the parties were living together on a genuine domestic basis, albeit for only part of the time alleged. The court made clear their finding that it is not necessary for the parties to live together on a full time basis for a de facto relationship to exist.

The Prenuptial Agreement was also significant to the court’s finding that a de facto relationship existed, as in it the parties declared that they were in a de facto relationship and it was evidence of Mr Sha’s commitment to a shared life. Ms Cham accepted Mr Sha’s promises of supporting her and she gave up her work as a sex worker and committed herself to have a child with him.

Mr Sha’s financial support of Ms Cham and their promise to have a child together was also relevant.

Appeal ground two – de facto relationship

Mr Sha also argued that the trial judge did not reach a conclusion in relation to each and every one of the factors to be considered under section 4AA as to whether they spoke for or against the existence of a de facto relationship. The Full Court found that there was no obligation upon the court to make a finding as to whether each factor favours or weighs against a finding as to the existence of a de facto relationship. Rather, the issue of whether a de facto relationship existed ought to be considered holistically, taking into account all the aspects of the evidence because “each element of a relationship draws its colour and its significant from the other elements, some of which may point in one direction and some in the other.”

Lessons to be learnt – definition of de facto relationship

Recent cases demonstrate that there is an infinite variety of combinations of facts and circumstances which together could meet the statutory test. Sugar daddies, friends with benefits – all types of relationships have the potential to be considered de facto in a court of law.

If you think you might be in a de facto relationship, then you should get some legal advice from an expert family lawyer.

If you would like legal advice on your particular situation and whether you are in a de facto relationship, contact our experienced family law team to obtain early advice about your individual circumstances and your family law rights and entitlements.

de facto relationship - all types of relationships qualify

Filed Under: News

Barton Family Law

Primary Sidebar

Online Enquiry

I would like to book a reduced rate initial consultation with you

Footer

Areas of Practice

  • Child Custody Lawyers
  • Divorce Property Settlement Lawyers
  • Fixed Fee Divorce Lawyers
  • Domestic Violence Lawyer – DVO Domestic Violence Order
  • Superannuation Splitting & Advice Lawyers
  • Fixed Fee Consent Orders Brisbane
  • Mediation Representation
  • Child Relocation Family Lawyers
  • Child Abduction Family Lawyers
  • Child Support Lawyers
  • Family Law Spousal Maintenance
  • Child Adoption Lawyer & Advice
  • Family Court Process
  • Family Mediation Services Brisbane
  • Binding Financial Agreements

Common Questions & Concerns

  • How to spend more time with your children
  • What is substantial and significant time 
  • Parental Alienation in Family Court Disputes – Pt 1
  • Parental Alienation in Family Court Disputes – Pt 2 
  • Top 10 things people do wrong in child custody matters
  • What age can a child decide where they live?
  • Admissibility of recordings in family law cases 
  • Am I a parent?
  • I’m Not a parent. Can I apply for a parenting order? 
  • I want sole custody
  • Can I go to court without doing mediation first?
  • Can parenting orders be changed? 
  • Relocation of Children
  • Interim relocation of children cases
  • Unilateral relocation of children
  • International travel with children after separation
  • My ex is breaching a parenting order. What do I do? 
  • When is supervised time ordered?
  • Is a child’s changed views enough to change a parenting order? 
  • Interim parenting orders – why can’t the judge make the orders I want? 
  • When can you change your child’s surname?
  • What is substantial & significant time?
  • Domestic violence order applications – boosting prospects of success
  • What to do and what not to do when you separate
  • Why you should formalise your property settlement;
  • Is Domestic violence relevant in a property settlement?
  • 6 secrets revealed to protect your assets 
  • 10 tips to protect your assets
  • 6 things you must know before hiring a family lawyer
  • Your Duty of Disclosure 
  • Spousal Maintenance – supporting your ex partner after separation 
  • Initial contribution of assets in a long relationship 
  • What is the just and equitable requirement?
  • Chancellor & Mccoy – no order after 27 yr relationship
  • Am I in a de facto relationship?
  • My ex is selling assets. What can I do?
  • Property acquired after separation – how is it treated? 
  • When are future inheritances they taken into account?
  • Failure to disclose an asset can derail consent orders 
  • Consequences of Defaulting on property orders 
  • Varying property orders 
  • Who stays in the home after separation?
  • Can the court order someone to leave the house – ouster orders 
  • Money lent from parents – gift or loan?
  • The impact of centrelink fraud on a property settlement 
  • CGT rollover relief for transfers of property pursuant to family court orders 
  • Costs orders 
  • Divorce – what you need to know
  • Going back to work after divorce 
  • Step-Parent awarded interim custody over parent 

If you are a law student, graduate or early career lawyer, reach out to Courtney who is also a law Coach. Courtney’s law coaching services are invaluable to young lawyers. Courtney’s one on one law coaching services will help you to achieve massive success in your legal career.  Check out Courtney’s website for the Thriving Young Lawyer to learn more about Courtney’s law coaching services.

Individual liability limited by a scheme approved under professional standards legislation.

Contact Us

Head office

  • Address: 4/996 Anzac Avenue, Petrie QLD 4501
  • Parking: Underground parking available at the back of the building via O’Loan Street
  • Phone: 3465 9332
  • Email: george.finn@bartonfamilylaw.com.au
  • Website: Petrie Family Lawyers

Northside – Chermside Office

  • Address: 822 Gympie Road, Chermside QLD 4032
  • Phone: 3465 9332
  • Email: george.finn@bartonfamilylaw.com.au
  • Website: Chermside Family Lawyers

Aspley Office

  • Address: Aspley Hypermarket, 59 Albany Creek Road, Aspley QLD 4034
  • Phone: 3465 9332
  • Email: tenayah.miano@bartonfamilylaw.com.au
  • Website: Aspley Family Lawyers

Toowong Office

  • Address: Toowong Tower Level 5, Toowong Tower, 9 Sherwood Road, Toowong, QLD 4066
  • Phone: 3465 9332
  • Email: tenayah.miano@bartonfamilylaw.com.au
  • Website: Toowong Family Lawyers

Copyright © 2020 · Privacy Policy
Created and hosted by LEAP · Log in