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When does a same sex relationship qualify as ‘defacto’?

by | Nov 3, 2022 | Family Law

A de facto relationship is defined in Section 4AA of the Family Law Act 1975. The law requires that you and your former partner, who may be of the same or other sex, had a relationship as a couple living together on a genuine domestic basis.

Due to same sex marriage only relatively recently becoming recognised in Australia there are a large number of same sex couples who have been in relationships for many years and have not elected to formally marry since the new law was introduced. Therefore, the classification of ‘de facto’ and the obligations, rights and entitlements it conveys is very relevant to individuals who identify as LGBTQIA+

While the existence of a marriage makes for a relatively straightforward ground to have a family law property division, under the Family Law Act 1975, the rules are not straightforward and there is an added degree of complexity when determining whether two people have been in a de facto relationship.

The Court will evaluate the following factors:-

  • The duration of the relationship and specifically whether the parties have lived together for a period of 2 years or longer;
  • Whether there are any children of the relationship (including non-biological children);
  • The degree of mutual commitment towards a shared life;
  • The reputation and public aspects of the relationship;
  • Ownership, use and acquisition of the parties’ property.
  • Whether a sexual relationship existed between the parties;
  • The extent and nature of shared residence; and or
  • The degree of financial dependence between the parties;

The Federal Circuit and Family Court of Australia has made it clear that it is not a prerequisite for all of the above factors to be present nor will one factor necessarily be given more weight than another.

If one party denies the existence of the relationship the other party will need to provide the Court with evidence that some/or all of the above criteria existed in the relationship. For example this may include, evidence of a property held as joint tenants, the existence of joint or shared bank accounts, evidence of contributions each other’s personal expenses,  witness Affidavits from relatives and/or friends who witnessed the relationship.

If you are in a same sex or non hetero-normative relationship and require advice regarding the legal status of your relationship and your entitlements please contact our experienced Family Law Team on (03) 9614 7111.