In Australia same sex couples are able to marry, and the definition of marriage is outlined in the Family Law Act. However, there are still many LGBTIQA+ couples who choose to remain unmarried and are in a de facto relationship. 

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. 

But what does it mean to be living together on a genuine domestic basis? When are you considered a de facto couple?   

If the parties to proceedings are not married nor in a de facto relationship, then the Court will not have jurisdiction to intervene in property proceedings in family law. The Court can be asked to make a declaration as to whether a de facto relationship existed where the status is not clear.  

The Court will have regard to any of the following factor: 

• The duration of the relationship; 
• The nature and extent of their common residence; 
• Whether a sexual relationship exists; 
• The degree of financial dependence or interdependence 
• 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  
• The care and support of children; 
• The reputation and public aspects of the relationship. 

However, the Family Law Act clarifies that “No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship”. In addition, it is noted in the Act that “a court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.” 

It’s clearly set out that no one factor can be determinative of a de facto relationship existing.  

If a party wants to initiate proceedings, then the burden in on the party filing the initiating application to establish that a de facto relationship exists. Even if that relationship is found to exist, the Court must then consider whether it is just and equitable for an Order for property division to be made.  

In the matter of Chancellor & McCoy [2016] FamCAFC 256, which involved a same-sex de facto couple who had been together for 27 years, the court determined that no order for property settlement would be made following their separation. The basis for this decision was that it would not be deemed ‘just and equitable’ to alter existing property interests, as the parties had maintained separate financial arrangements throughout their relationship. The court arrived at this decision by considering the following (non-exhaustive) factors:  

• There was no intermingling of their respective finances 
• The parties had no joint bank accounts; 
• Each party owned their own property;  
• Each party carried their own debt; 
• Each could use their wages without accountability to the other; 
• There was no joint decision making with regard to property;  
• Neither had accounted for the other in the event of their death; and, 
• As at separation neither party was aware of the assets the other had acquired. 

Interestingly, this decision was in spite of the fact that after the relationship began Ms McCoy acquired a property in her own name and the parties lived in and renovated that property. Ms McCoy paid for the renovations and Ms Chancellor assisted with the labour. Ms Chancellor also paid Ms McCoy between $100 to $120 a fortnight for most of the relationship. In 2002, Ms Chancellor then purchased a property in her own name. Renovations were also undertaken on that property, which were funded by Ms Chancellor, while Ms McCoy assisted with labour. However, the arrangement of the finances was such that the Court formed the view that neither party would or could have acquired an interest in the property owned by the other. 

If you want more information as to whether you are in a de facto relationship or if you need assistance with a division of property in a family law matter, please contact our office at 03 9670 4122 to arrange an initial consultation.