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De Facto or not De Facto – that is the question?

A recent decision by Judge Hughes in the Federal Circuit Court of Australia has given further insight into what does and does not qualify as a de facto relationship under Australian law. Under the Family Law Act a person is in a de facto relationship with another if the couple are in a relationship and living together on a genuine domestic basis yet are not legally married to each other or are not related by family.

In the matter of Newland & Rankin [2017] FCCA 210 Judge Hughes was asked to determine at what point the parties could be believed to be “living together on a genuine domestic basis.” Evidence put forward by the Applicant was that this threshold was met in 2003 at the start of the parties’ sexual relationship; whilst the Respondent contended that it was in 2008 when they had moved in together. Given the property and business interests of the Respondent, the length of the relationship was a significant factor in determining any alteration to those interests in favour of the Applicant.

It was noted by the Court that during the course of the contested six year period the parties had resided together for short periods, and had been on holidays together. Conversely there had been periods of several months where the parties had had no contact at all. Both parties gave evidence that the Applicant had maintained relationships and lived with other women during this period; however the Family Law Act permits that a person can be in several de facto relationships at once. Neither party disputed the fact that there had been an ongoing sexual relationship during this time.

It was found by the Court that until 2008 there was no mutual commitment to a shared life, no financial dependence or interdependence and the parties owned no property together.  As such this was the point at which the relationship met the threshold of “a genuine domestic basis,” not the casual sexual relationship which had begun six years earlier.

By Nicholes Family Lawyers



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