THE HOUSE IS MINE - WE WEREN’T DE FACTO! OR WERE WE?

4/05/2011

And there you were thinking your relationship was safely ‘non-de facto’ and your property out of reach of your partner should the relationship run its course.

Don’t you have to live together as a couple to be considered de facto?

Not necessarily.

What makes for a de facto relationship isn’t as clear as you might think. You may have been happily carrying on a relationship for years living in separate residences, having a few romantic trysts a week, and a court could still potentially label you de facto.

These days the law largely treats de facto relationships the same as marriages. They’re subject to the same system of property division, maintenance and disputed will claims if the relationship ends or one person dies.

Since March 2009 the Family Law Act has covered de facto matters (before that it was mainly state jurisdiction). It defines a de facto relationship as one existing between two people (heterosexual or homosexual) living together as a couple on a domestic basis, who are not married or related.

Fairly straightforward. But then the Act lists a whole lot of circumstances to be taken into account when a court decides on a relationship’s status. And none of these matters alone, or in any particular combination, is necessary for it to be deemed de facto.

One consideration is “the nature and extent of common residence”. But others include things like the relationship’s length, whether it’s sexual, whether one person is financially dependent on the other, who cares for and supports any children, how others perceive the relationship (its “reputation”) and how committed both people are to a shared life.

So sharing a residence is merely one thing for a court to consider. In fact, the court can attach any weight to any of the matters as it sees relevant. It’s not black and white.

Before making orders though, the Family Court or Federal Magistrates Court must be satisfied that the de facto relationship went on for at least 2 years (unless there is a child).

The passing of the NSW Relationships Register Act last year means that you can now register your relationship with the Registry of Births Deaths and Marriages, regardless of living arrangements. If you’re registered it’s easier to exercise your legal rights later; yet another thing the court looks at when making decisions about property and maintenance.

Alternatively, if you’ve been burned before and you’re desperate to protect your property, you might want to take a good look at the legislation before becoming entangled in a new relationship, and try to avoid any situation that might potentially see you labelled ‘de facto’! Or admit you’re in one and enter into a Financial Agreement.

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