In the eyes of the law, are my partner and I considered de facto?

There is no definitive ‘yes’ or ‘no’ answer to that one without first engaging in closer examination of the nature and dynamics of your relationship.
When married couples come to court, they produce a copy of their marriage certificate to prove they fall under the jurisdiction of the Family Law Act 1975 and, as such, can apply to the court for property orders.

For de facto couples, however, to fall under the Family Law Courts’ jurisdiction (where they must have separated after 1 March 2009), the process of establishing their relationship existed – at law – is not always so clear cut. Section 4AA, as a threshold issue to establishing the existence of a de facto relationship, requires the couple in question:
– not be married to each other;
– not be related to each other by family; and
– having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a “genuine domestic basis”.

The section then provides a list of what the court may look at when deciding whether the circumstances of a relationship will tip the scales to say the parties were ‘really’ a de facto couple (as opposed to just boyfriend/girlfriend):
– length of the relationship;
– the nature and extent of their common residence;
– whether a sexual relationship exists;
– the degree of financial dependence or interdependence, and any arrangements for
financial support, between them;
– the ownership, use and acquisition of their property;
– the degree of mutual commitment to a shared life;
– whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
– the care and support of children; and
– the reputation and public aspects of the relationship.

Generally speaking, the more ‘applicable’ or the greater the extent of each one of those factors having existed between a couple, the more likely a de facto relationship may be declared to have been bona fide (‘genuine’).

Once you are declared as having been in a de facto relationship, thanks to section 90SB, as a precursor to the court being able to make property or maintenance orders between you, the court must also be satisfied of one or more of the following:
– that the period, or the total of the periods, of the de facto relationship is at least 2 years; or
– that there is a child of the de facto relationship; or
– that:
– the party to the de facto relationship who applies for the order or declaration made “substantial” financial, non-financial or homemaking/parenting contributions; and
– a failure to make the order or declaration would result in serious injustice to the applicant; or
– that the relationship is or was registered under a prescribed law of a State or Territory.

And then, this time thanks to section 90SD (maintenance) or section 90SK (property), the court must also be satisfied:
– that either party was ordinarily resident in a participating jurisdiction when the application was made; and
– that either:
– both parties were ordinarily resident during at least a third of the relationship; or
– you (as the applicant) made substantial contributions in a participating jurisdiction(s) when the application was made; or
– that the parties were ordinarily resident in a participating jurisdiction when the relationship broke down.

See, we were not kidding when we said the answer to the question is never really clear cut. And just in case you are wondering; yes, you can still be found to have been in a de facto relationship even if you were at the time legally married to someone else.

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