DIFFICULTIES DEFINING DE FACTO RELATIONSHIPS

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De facto relationships, rather than marriage, are becoming increasingly popular with Australians according to trends established by the Australian Bureau of Statistics (2016).

Australian law defines a de facto relationship as:  “a relationship with another person where the two individuals are:

  1. Not legally married;
  2. Not related; and
  3. Living together on a genuine domestic basis considering all circumstances of their relationship.”

The broad definition of a de facto relationship requires the individual circumstances of the relationship to be considered before making a determination as to whether the relationship falls within the meaning of de facto.

Australian law more clearly defines a marriage as “the union of two people to the exclusion of all others, voluntarily entered into for life.”

So what are the difficulties and differences with de facto relationships?

Key to identifying what does constitute a de facto relationship is when it ends; because de facto relationships are flexible in nature and typically lack documentation.

A de facto relationship does not need to be ‘to the exclusion of all others’ or ‘for life’, but it is determined based on the circumstances of each relationship. The difficulties in the broad definition arises in cases attempting to identify whether a de facto relationship actually ‘ended’, such as in the case of Cadman & Hallet [2014] FamCAFC 142 where a same sex couple:

  1. Lived apart for large amounts of time;
  2. Where not in an exclusive relationship for a majority of the relationship; and
  3. Did not have a sexual relationship.

Considering the above, it was the frequency of communication, financial contributions and the parties’ Wills that were relied on as evidence as to whether there was a breakdown of the de facto relationship.

Contrast with the case of Estate Hawkins; Huxtable v Hawkins [2018] NSWSC 174, where it was the conduct of the parties to the relationship that identified the existence of a relationship and other factors.

Implications for the difficulty defining what is and is not a de facto relationship?

De facto relationships are almost entirely reliant on individual circumstances as to whether the couple is or is not in a valid de facto relationship. The obvious difference to married couples is that a de facto couple are not bound by a formal contract such as a marriage certificate. Hence, the Court may be asked to determine the validity of the de facto relationship, if it is unclear, when considering property and financial settlement matters pursuant to Part VIIIAB of the Family Law Act 1975 (Cth).

Please contact us to speak to our Family Lawyer, Ms Chyrse Lambridis, who can provide you timely and relevant advice for any of your enquiries.


Chyrse Lambridis is a Solicitor at Stephens & Tozer, who has proudly and actively supported the LGBTIQ community since 1999. Co-author, Ryan Meehan, is a Law Graduate undertaking placement at Stephens & Tozer, gaining experience in family law matters, among many other areas of law. Contact our family law team for all your family, parenting and divorce needs.

23 December 2019

Category: All / Family Law