When it comes to family law matters in Australia, the definition of a de facto relationship is not always as straightforward as it may seem. While many assume that living together is a requirement to be recognised as de facto partners, recent case law has challenged this notion. Understanding what constitutes a de facto relationship under the Family Law Act is crucial, especially for those navigating separation, property disputes, or family law proceedings.

 

The Family Law Act is the legislation governing family law in Australia. That Act provides a definition of a de-facto relationship¹, as follows:

“A person is in a de-facto relationship with another person if: a) the persons are not legally married to each other; and b) the persons are not related by family; and c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.”

On a plain reading of that definition, it may seem that cohabitating is a requirement to establish the existence of a de-facto relationship.

However, the High Court of Australia judgement in Fairbairn & Radecki² clarified that cohabitation of a residence is not a necessary feature of “living together”, forming the view instead that the phrase “living together” as it is used in the Family Law Act definition of de-facto relationship, “must be construed to take account of the many various ways in which two people may share their lives together in the modern world” and that “two people, for any number of reasons, may not reside in the same residence, but nonetheless be in a  de facto  relationship in the sense required by s 4AA.”

 

The Family Law Act further provides a list of circumstances which may be relevant in determining whether a de-facto relationship exists, including:

a) The duration of the relationship;

b) The nature and extent of the parties’ common residence;

c) Whether a sexual relationship exists;

d) The degree of financial dependence or interdependence, and any arrangements for financial support between them;

e) The ownership, use and acquisition of their property;

f) The degree of mutual commitment to a shared life;

g) Whether the relationship is or was registered under a prescribed law of a state;

h) The care and support of children; and

i) The reputation and public aspects of the relationship.

 

Whilst these are factors which the court may consider, the court is not limited to only these factors in determining whether a de-facto relationship existed and has discretion to consider any other factor that is relevant.

Recent case law also highlights the distinction between a de-facto relationship and a casual intimate relationship.  In Shelby & Rylan³, the Court determined that no de-facto relationship existed, despite:

– The parties having had a casual sexual relationship for ten years.

– The parties enjoying many holidays together and sharing a bed on those trips.

– The parties staying at each other’s homes on occasions.

– The Respondent loaning the Applicant money so that she could purchase a house.

– The Respondent making payments to the Applicant’s mortgage, in lieu of paying her for working in his company.

– The parties meeting up regularly for dinner.

– The Respondent providing the Applicant with funds to renovate her house.

– Holding joint health insurance.

– Attending some important family events together.

– The Respondent purchasing expensive jewellery for the Applicant.

 

In that case, the factors which lead to the Court finding that no de-facto relationship existed included:

– There was no expectation of monogamy by the parties.

– Neither party had amended their testamentary documents to include the other.

– They never entertained the idea of living together as a possibility.

– They never discussed sharing a home together.

– They made decisions about their assets and acquisitions independently.

– They initially had a casual sexual relationship, which developed into more of a spasmodic sexual relationship.

– There was no financial dependence upon each other.

– The wife insisted on having sexual freedom.

– The parties’ tax returns described themselves as being single.

– There was no financial intermingling of personal finances – all moneys loaned between them were documented formally.

In a further recent case, Cizek & Mihov⁴ – a judgement of Austin J in the appellate jurisdiction of Division 1 of the Federal Circuit and Family Court of Australia – the Court dismissed an appeal of the primary judge’s findings that no de-facto relationship existed in circumstances where the primary judge was satisfied that:

• One party was committed to a monogamous relationship and was hopeful that they would: live together in a common residence all of the time in the future, travel together, attend and host social events together, and pursue their shared philanthropic ambitions.
• The other party was not so invested in the relationship, opting to live separately despite the other party’s desire to live together, engage in a life of travel with and without the other party, attend at and host social events with or without the other party, and maintain the freedom to simultaneously engage in other romantic relationships.

In those circumstances, the Court was satisfied that “the picture of the parties’ relationship does not support that the parties were ever in relationship as a couple living together on a genuine domestic basis [and that] their relationship of 10 years and three months was always something less than a de facto relationship”.

 

If you are unsure whether your relationship qualifies as a de facto relationship or you need legal advice regarding separation, property disputes or parenting matters, seeking professional guidance is essential.

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This blog is for informational purposes only and does not constitute legal advice. If you need advice tailored to your specific situation, consult one of our family lawyers in Newcastle or Maitland.

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[1] Family Law Act 1975 (Cth), Section 4AA

[2] [2022] HCA 18

[3] (No. 2) [2022] FCFC1F 281

[4] [2024] FedCFamC1A 151, Appeal from: Cizek & Mihov [2024] FedCFamC2F 584