De-facto Couple or just “Boyfriend and Girlfriend”

De-facto Couple or just “Boyfriend and Girlfriend” There is a lot of confusion as to the definition of what is considered a de-facto relationship, Centrelink has its own definition, which is different than what is used in migration law and the Family Law Act 1975 provides no clear definition.

De-facto relationships can be hard to define given the lack of certainty over when one starts and when one ends. There is no precise formula, instead the Court is required to consider whether or not, the parties where living together “ on a genuine domestic basis ” [1] and therefore will consider any or all of the following;

  1. the duration of the relationship;
  2. the nature and extent of their common residence;
  3. whether a sexual relationship exists;
  4. the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
  5. the ownership, use and acquisition of their property;
  6. the degree of mutual commitment to a shared life;
  7. whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
  8. the care and support of children;
  9. the reputation and public aspects of the relationship. [2]

Not all of the above factors must be present, nor will any one be given more weight than another. The Court will consider each case on its own merits.

Herford and Berke (No. 2) [2019] FamCAFC 182

The Full Court of the Family Court dismissed an appeal against the decision of Judge Jarrett, the issue on appeal was whether appropriate weight and consideration had been given to the ‘nature and character of the relationship’ when making a declaration that the parties’ de-facto relationship had broken down.

The parties had started to reside separately, (although both living in properties owned by Mr Berke), had no joint expenses and largely provided for their own respective needs. Whilst they still spent time together, occasionally sleeping at the other’s residence and shared meals, they were ‘non exclusive’ and it was clear that there was no shared commitment to a long term domestic relationship.

On appeal, the Court reaffirmed his Honour Judge Jarret’s findings that despite a romantic relationship continuing after the parties lived separately the relationship was not a de-facto relationship, despite one party trying to save the relationship.

Determining the existence of a de-facto relationship can be complicated, as this recent case highlights, the existence of an ongoing relationship is not definitive of a de-facto relationship for the purposes of Family Law matters.

It is important that if you have recently separated to seek legal advice early. If you need help, our Family Law team is happy to help.

[1] Section 44AA, Family Law Act 1975.
[2] Section 44AA(2), Family Law Act 1975.

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