Dating or De Facto: What's the difference?

The Family Court and Federal Circuit Court have jurisdiction to deal with the property of de facto couples who have separated. Separated couples however may not be sure whether they are ‘entitled’ to a property settlement, depending on whether or not they were living with their former partner.

So, you may ask, what is the difference between a de facto couple, as compared to a couple who has been dating?

Generally a couple who has been living together for two years or have a child (or children) will be considered to be in a de facto relationship. There are a number of factors that the Court will consider in determining whether a de facto relationship exists, irrespective of the length of the relationship.

To establish the existence of a de facto relationship, the Court will consider:

  • Whether the couple have been living together, or spending significant time at each other’s homes;
  • The existence of a sexual relationship;
  • The length of the relationship;
  • Whether there is any financial dependence between the couple;
  • Whether the couple has purchased assets together;
  • Whether the couple registered their relationship within their state or territory, such as a civil partnership;
  • If there are any children of the relationship, the extent to which they each provide care and support for the children; and
  • Whether the couple hold themselves out to the public as such.

None of these factors are solely determinative, and parties are not required to establish all of the above factors for the Court to find the existence of a de facto relationship.

Ultimately, each case will be determined on its own facts and there is no ‘rule of thumb’ about whether or not a de facto relationship exists. Some Full Court cases dealing with the issue include:

  1. The Full Court upheld the decision of the trial judge in Jonah & White (2012) FLC 93-522, who found that there was no de facto relationship, in circumstances where the parties had an extra-marital affair for a number of years. One party had made monthly payments to the other party for financial support, and the alleged de facto husband acknowledged during the trial that the parties had been in a relationship;
  2. In Chancellor & McCoy [2016] FamCAFC 256, the Full Court found that a de facto relationship existed for a same sex couple. Interestingly, although the couple acknowledged that a de facto relationship existed, the Court declined to make any orders for a property settlement, on the basis that they had kept their finances relatively separate;
  3. The Full Court upheld a decision that there was no de facto relationship where the couple had been dating for 8 months. The application filed by the girlfriend for property settlement was refused on the basis of the length of their relationship, and that she had not made contributions referred to in section 90SM of the Family Law Act; Redmond & Mullins FamCAFC 69;
  4. A Couple having an extra-marital affair for 7 years were found not to be in a de facto relationship: Na & Tiu [2017] FamCA 282;
  5. In a parenting matter, the Court found that a de facto relationship did exist between a birth mother and an egg-donor, who were also engaged in a sexual relationship, having regard to their text messages; Clarence & Crisp [2016] FamCAFC 157;
  6. In Moby & Schulter [2010] FamCA 748, an on and off relationship of 9 years was found to be a de facto relationship, where the parties lived together in multiple residences on and off, and the de facto husband had made financial contributions to the de facto wife’s business; and
  7. In Regan & Walsh [2014] FCCA 2535, a same sex “friends with benefits” relationship of 8 years, was found not to be a de facto relationship, although there had been a sexual relationship and some financial dependence upon the respondent.

If the Court does find that a de facto relationship exists, the Court must then go through the same exercise that applies in relation to separated couples of a marriage, to determine what is an appropriate property settlement, including taking into account each party’s respective contributions to the relationship and their future needs.

If you have recently separated and are seeking specialist family law advice, contact us to schedule an appointment by phone on (02) 6225 7040, or email us at [email protected].