In this blog we look at the circumstances in which a relationship between two people who aren’t married but live in the same residence, part or all of the time, could be considered to be a de facto relationship under Australian family law.
Section 4AA (2) of the Family Law Act 1975 lists a number of things that the Family Court takes into account when determining the existence or otherwise, of a de facto relationship, including the obvious ones of sexual intimacy and length of the relationship.
There are also relevant factors such as the degree of financial interrelationship (e.g. joint bank accounts, co-ownership of property or financial support provided by one to the other), the degree of mutual commitment to a shared life including public displays of the relationship and whether there are any children.
As with several areas of the law, no one indicator is considered absolute. It’s best to think of a pot into which a number of these ingredients might be present or absent. If after a good stir, it looks and smells like a de facto relationship, it will likely be determined to be so.
What about a fly-in-fly-out worker who spends six weeks at work (in shared accommodation) and two weeks ‘at home’ while off work, staying with a partner and his/her children? The female partner of the fly-in-fly-out worker might not pay rent, but she might do the housekeeping, manage the household expenses including her partner’s money, travel overseas with her partner on occasion and maintain a sexual relationship with him. Others in their town might view them as a couple, given the nature and extent of their social interactions.
This situation mirrors the facts in the case of Cuan & Kostelac  FamCAFC in which the Full Family Court upheld a finding that a de facto relationship did exist, giving the male partner rights under the Act. A sufficient number of the positive indicators were present to justify this finding. As some might say “With the benefit comes the responsibility.”
All cases will be different, but a bit of common sense applied to the indicators in section 4AA(2) will go a long way to answering the question of whether parties are in a relationship or not.