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.
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  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:
- He erred in his finding that the parties shared a common residence at Ms Cham’s house ‘for relatively confined periods of time’;
- 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.