Kate and Will have shared a house for four years. They each have jobs and their own bank accounts. They have their own bedrooms. They pay an equal share of the rent and share the housework.   Are they a de facto couple?   Probably not. But, if Will cooks for Kate most nights, they go out together most weekends, they visit each other’s family, they purchased the leather sofa and flat screen TV together, occasionally have sex and take shared holidays it is possible that they are.  

De facto relationships  

Relationships are either ‘de jure’ (by law) or ‘de facto’ (by fact). To paraphrase section 2D of the Property Relationships Act (the Act), a de facto relationship is between two people, both over 18, who live together as a couple (but are not married or in a civil union with one another).   In deciding whether two people are living together as a couple, the Court will take into account all of the circumstances of the relationship including such factors as:  

  • How long the couple have been together.
  • If they are living together in the same house.
  • If they have sex.
  • Whether they are dependent on each other for money, and whether one person supports the other.
  • If they own, use or have bought property together.
  • How mutually committed they are to share their life.
  • Whether they care and support children together.
  • Who performs the household duties.
  • Whether they are viewed as a couple publically.

How does the Court decide if a de facto relationship exists?  

The Court has a wide discretion to decide how much emphasis to give any of the factors above.  None will decide the issue on their own and none on their own are necessary.  This is one of those issues that the Court can decide taking into account all of the circumstances of each individual case.   With marriages and civil unions the start date of the relationship is public and known. 

However,  you can find yourself in a de facto relationship in circumstances where your relationship has gradually moved that way without any formal step being taken.  Accordingly you can unwittingly find yourself “married”.   The Courts will look for a real joining together of lives; the same level of commitment as when two people decide to marry.  It is not necessary that you live together all the time but living together all the time will not necessarily decide that you are in a de facto relationship.  

The consequences of being in a de facto relationship.  

Generally speaking, once you have been in a de facto relationship for three years, the property sharing provisions of the Property (Relationships) Act come into play and the division of property will be treated the same way as if you had walked down the aisle.   If you would like to discuss this issue further please contact Jeremy Sutton, Barrister.

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