Most of us these days have some type of story of a marriage breakdown and are acutely aware how ugly they can sometimes become. Have you ever however considered the legal effect of the breakdown of a de-facto relationship and when the Courts will become involved?
Under the Family Law Act a 'de-facto' relationship is defined as a couple "living together on a genuine domestic basis" having regard to the circumstances of the relationship. Nine key factors provided in section 4AA of the Act are then considered to determine whether the particular relationship meets this definition. Factors include the duration of the relationship, the extent to which you live together, whether you care for children together, whether you have acquired property together and how you generally hold your relationship out to the public.
While each factor is important to consider individually, in some instances courts have tended to holistically emphasise the extent to which the parties have mutually committed to sharing a life together. This, of course, will turn upon the evidence presented to the Court.
By looking at a relationship in this way the Court is essentially trying to balance competing interests. On one hand because the relationship falls short of a formal marriage it is inherently less certain in terms of mutual commitments. On the other hand the Courts must play a protective role in Family Law by preventing or reducing exploitation within a relationship, be that marriage or de-facto. Therefore even though the Act defines a de-facto relationship in the above way the Act itself will not automatically apply to a de-facto relationship unless:
- the relationship has lasted at least two years; or
- there is a child of the de-facto relationship; or
- one party to the relationship made substantial contributions to the relationship and failing to make a property order would result in serious injustice to that party; or
- the relationship is registered under the relevant State or Territory legislation.
If you have any questions about this article, require assistance or seek more information on Family law as it applies to your de-facto relationship, please contact us on (02) 9525 8688 or click here to download our Family Law eGuide.