If you read the 2017/2018 Budget – or any news reports about the Budget once it was released – you may have noticed that “single-parent households will be subjected to closer scrutiny [by Centrelink] to verify their relationship status”.
In conversations I have had since Tuesday night, both on and off social media, this is, understandably, causing some concern, particularly amongst parents who consider themselves “single parents” even though they have re-partnered.
One of the most common questions I am asked is “am I in a de facto relationship, or are we still just ‘boyfriend and girlfriend’”?
The answer to this question will vary depending on who is asking.
For example, if Centrelink is asking – there is no minimum time by which you may be considered to be in a de facto relationship but a range of other factors will be considered; and if the Department of Immigration (& Border Protection) – a de facto relationship may be established after 12 months and a range of factors will also be considered.
However, for the purposes of the Family Law Act, the answer is very different and there are many factors considered.
FAMILY RELATIONSHIPS AND THE LAW IN AUSTRALIA
Generally speaking in Australia, in family law, there are two types of relationships – marriages and de facto relationships.
The Family Law Act applies to relationships between married or de facto couples in almost the same way – once the existence of the relationship is established.
A marriage is easy to define, recognize and prove.
A marriage starts with a ceremony signifying the occasion (usually celebrated with your closest friends and family), and a certificate that provides evidence of the relationship and the date that relationship “officially” started, being the date of marriage.
It’s rather black and white, isn’t it? You are married – or not. (The question of separation may be a different story!)
A de facto relationship on the other-hand is not always so easy to identify or define. Disputes can, and do, arise about the date the de facto relationship started or whether a de facto relationship existed at all.
THE LEGAL TEST
The general legal test applied by the Family Law Courts to establish if you are in a de facto relationship or not is whether you lived together on a “genuine domestic basis” for two or more years.
That sounds kind of simple, doesn’t it?
But what does “genuine domestic basis” actually mean in the context of de facto relationships and the Family Law Act?
If you aren’t sure whether or not you were in a de facto relationship, the following factors (which are considered by the Courts) may help you determine whether you were living together on a genuine domestic basis. They include:
- how long you were in a relationship
- whether you lived together
- if a sexual relationship existed
- the financial arrangements in place
- the way the you owned, shared and used property
- the degree of commitment you both had to a shared life together
- if your relationship was registered in your State or Territory
- the financial and physical care arrangements for your children
- the reputation and public aspects of your relationship.
If some or all of these factors can be established, you then need to show you lived together for two years or more before you are able to make a claim for a property settlement.
No one factor is given more weight than the others.
WHO DOES THE TEST APPLY TO?
The test applies:
- if you are a same-sex or different-sex couple;
- if one of you is married to someone else; or
- even if one of you is in a de facto relationship with someone else (it also doesn’t matter whether or not they have officially separated from that spouse).
WHAT IF ONE OF US WORKS AWAY?
If one of you works in defence, or is a FIFO, DIDO or other work-away-from-home employee; the roster you or they work – whether it is an even time roster or not – does not reduce the length or nature of your relationship if other factors can be established.
Remember, no one factor is given more weight than the others.
ARE THERE EXCEPTIONS TO THIS RULE?
Of course, as with many aspects of the law, there are two main exceptions to this rule and a de facto relationship will be established even if you break up before two years passes if:
- you have a child together; or
- one of you makes a significant contribution of a financial or non-financial nature to the assets of the relationship and it would be unjust if orders for a property settlement were not made.
WHAT IS A SIGNIFICANT FINANCIAL CONTRIBUTION?
An example of this might be where one of you owns property and the other pays a significant lump sum – say $100,000 – to reduce the mortgage over that property in the first 18 months of living together.
In those circumstances, the court will likely consider it unfair if it didn’t make orders for a property settlement.
WHAT IF ONE OF YOU SAYS THERE WAS A DE FACTO RELATIONSHIP, AND THE OTHER SAYS THERE ISN’T?
It is not always a simple process to identify a de facto relationship if there is a dispute, even if one party says the relationship lasted longer than two years. The Family Law Courts will consider the evidence that can be produced to prove or disprove a relationship existed.
If a de facto relationship can’t be established, the Family Law Act won’t apply and the court may not make orders for a property settlement.
If you find yourself in this situation, I really encourage you to ask for advice about your unique circumstances from a lawyer who specializes in Family Law because the process involved in proving or disproving a de facto relationship can be very expensive and difficult, not to mention distressing!