The House Is Mine – We Werent De Facto! Or Were We?
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.
Dont you have to live together as a couple to be considered de facto?
What makes for a de facto relationship isnt 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. Theyre 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 relationships 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 relationships length, whether its 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. Its 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 youre registered its easier to exercise your legal rights later; yet another thing the court looks at when making decisions about property and maintenance.
Alternatively, if youve been burned before and youre 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 youre in one and enter into a Financial Agreement.