By Nicholas Coveney, Associate
It is a common misconception that two people need to be physically living together on a full time basis for two years before they are deemed to be a de facto relationship.
In actual fact, two people are deemed to be in a de facto relationship if they live together in a marriage-like relationship and are not legally married (see section 13A(1) of the Interpretation Act 1984 (WA)).
Living together doesn’t mean physically living together full time, part time or at all.
You can actually be married and in a de facto relationship (hello misters and mistresses) or in multiple de facto relationships at the same time (hello swingers).
In the leading case on de facto relationships, Truman and Clifton [2010] FCWA 91 at para 342, Chief Judge Thackray held:
“De facto relationships may co-exist with the married of one or both parties, and, at least in some circumstances, people may be parties to multiple de facto relationships.”
When considering whether or not two people live together in a marriage like relationship, the 9 factors described in the table below are indicators of whether or not such exists, but are not essential (see section 13A(2) of the Interpretation Act).
As Chief Judge Thackray held in Truman and Clifton, also at para 342:
“It is the common intention of the parties as to what their relationship is to be, and to involve, and as to their respective roles and responsibilities, that primarily determines the nature of that relationship. The intention may be expressed or it may be implied. What is relevant is their intention as to matters that are characteristic of a marriage or a civil union…”
| No. | Factor | Examples which indicate you are in a de facto relationship |
| 1 |
Duration of your relationship |
The longer your relationship, the more likely it is to be a de facto. |
| 2 |
Whether you share a common residence |
You live together. Neither of you pays rent or board to the other. The residential address you list on government forms (e.g. tax returns, license and the electoral role) is the same. |
| 3 |
Your sexual relationship |
You have a frequent sexual relationship. Your sexual relationship is mutually exclusive. |
| 4 |
Your financial inter/dependence |
You share joint bank accounts. You share joint loans. You own property in joint names. Your private health insurance is in joint names. You list yourselves as a couple on tax returns. |
| 5 |
Your ownership, use & acquisition of property |
You own property in joint names or have had discussions about doing so. You live together in the same property. You both make payments towards the home loan repayments of the home you both live in (regardless of whether it is owned by only one of you. You have purchased furniture which you both you. |
| 6 |
Your commitment to a shared life |
You share meals together.
You regularly communicate via phone. You assist with the care of the others child/ren. You have conversations about being a couple. You live in the same house. You regularly spend time together and with family and friends. |
| 7 |
Registration of relationship |
Your relationship is registered under state or national laws. |
| 8 |
Care and support of children |
You have children together. You care the others persons child/ren. You financially support the other persons child/ren. You are involved in the day to day activities of the other persons child/ren e.g. taking them to school, appointments, sport etc. |
| 9 |
Relationship in the public eye |
You refer to one another as partners. You are named in each others wills. You are listed as each others binding death nomination in your superannuation polices. You are invited to attend events together. You are photographed at events together. |
If I am in a de facto relationship, can either myself or my partner instigate Family Court proceedings if we separate?
If you and your partner are in a de facto relationship, either of you can institute financial proceedings in the Family Court if:
- It has not been more than two years since you separated;
- One or both of you are resident in WA when an application is made;
- Either:
- at least one third of your relationship was in WA; or
- the person instituting proceedings made substantial financial, non-financial or parenting/homemaking contributions; and
- Either:
- Your de facto relationship lasted at least 2 years; or
- There is a child of your de facto relationship which is under 18 years of age and it would be a serious injustice to the person caring for or responsible for the child if an order was not made; or
- The de facto partner applying for an order made substantial financial, non-financial or parenting/homemaking contributions and it would be a serious injustice to that person if an order was not made.
(See sections 205Z and 205X of the Family Court Act 1997 (WA)
If either of us can institute proceedings, what are we each entitled to and what are our ongoing financial rights and obligations?
If you’d like specific advice as to whether or not you are in a de facto relationship, what you and your partner are each entitled to if you separate, and how you can legitimately protect your assets before or after separation, we invite you to book an appointment with one of our lawyers.