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Published: 05 June 2015
Author: Ryan Carlisle Thomas with research assistance from Kate Stowell

The status of a de facto relationship during a legal battle can be complex

Marriage certificates prove you’re married but getting the court to recognise a de facto relationship can be complicated.

The Family Court didn’t have the jurisdiction to deal with de facto couples until 2009 but these days, I would deal with as many de facto relationships as marriage disputes.

There are a range of factors the court will examine to determine if the relationship can be termed as de facto. And it can get very personal.

As a general rule of thumb the couple needs to have lived to together for a total period of two years.

Now that doesn’t mean it has to be continuously two years – it can be six months of living together and then you break up for two months, you live together again for another six months, you break up again and then you live together again for 18 months. In that instance the total time of living together would be more than two years so you would satisfy the court.

But sometimes the court will say there’s a de facto relationship when you haven’t lived together for two years, if there are children involved. For example, if you’ve only lived together for a year but you’ve got a baby together the court may class that as a de facto relationship.

Finance is another thing the court looks into to determine if there’s a de facto relationship.

Let’s imagine a case in which the husband is saying there was a de facto relationship and the wife is saying there isn’t. They may be disputing the winnings from a big lottery payout for example. The wife could strongly argue that it was never a de facto relationship because the parties involved never mixed their finances. They always had separate bank accounts, they paid their bills separately and they’re both listed with Centrelink as being single people.

Other things the court may scrutinize include if there was a sexual relationship, did they own property together and did the parities involved socialize together? Did they go out for dinner together? Did they go to family functions together?

Some people allege there is a de facto relationship even if they are living separately. And sometimes the court finds that yes, in that instance, there is a de facto relationship. They might be living separately during the week and only living together on weekends. But they may have joint bank accounts or a child together and a sexual relationship. So the court might determine that even though they are not living together the majority of the time, in every other regard, they are living like husband and wife.

Categories Family Law, Divorce, Courts

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