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Are You in a De Facto Relationship?

The inclusion of de facto relationships, (which encompasses same sex relationships) within the Property (Relationships) Act 1976 (“the Act”) effectively means de facto couples will receive similar treatment, concerning disputes about property, to those who are married.

De facto relationships and the Act

De facto relationships will ordinarily be covered by the Act only if the partners have lived together as a couple for three or more years. After three years, the principle of equal sharing applies.

There are exceptions to the three year rule. These include situations where there is a child of the de facto relationship or where one party has made a “substantial contribution” to the de facto relationship. Before it makes an order, when considering exceptions to the rule, the Court must be satisfied that failure to make an order would result in a serious injustice.

Definition of a de facto relationship

Section 2D (1) of the Act defines a de facto relationship as a relationship between two persons whether they be a man and a woman or same sex partners; provided both are aged 18 or older, live together as a couple and are not married to or in a civil union with each other.

What constitutes living together as a couple?

Section 2D (2) of the Act states that when determining whether two persons live together as a couple, all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case:

  • the duration of the relationship
  • the nature and extent of common residence
  • whether or not a sexual relationship exists
  • the degree of financial dependence or interdependence, and any arrangements for financial support between the parties
  • the ownership, use and acquisition of property
  • the degree of mutual commitment to a shared life
  • the care and support of children
  • the performance of household duties
  • the reputation and public aspects of the relationship

The overall question for the Court is whether the two people concerned live together as a couple. The above list is not intended to be exhaustive, and any other relevant factors may be taken into account. Similarly, none of the factors is either independently, or in combination, a necessary ingredient of a de facto relationship. The factors set out above simply assist the Court in determining whether a de facto relationship exists.

It appears the Court is looking for a mutual commitment to a single lifestyle, with or without a common residence or sexual relationship. The Court will also be giving active consideration to the intention of the parties at ‘relevant times’, (‘relevant times’ will vary from case to case, but essentially encompass the series of events being considered by the judge) to enter into and to remain in a committed de facto relationship.


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