A romantic relationship or de facto relationship? Is there a difference?

Jan 23, 2023

Not all unmarried relationships are de facto relationships.  Unless officially registered, it can be unclear when a relationship transitions from simply “dating” or “casual” to a de facto relationship.

Before parties who are not married can make a property settlement claim under the Family Law Act 1975 (the Act) after separation, it is essential that the relationship falls within the meaning of a de facto relationship within the definition provided by the Act.

The question of whether a relationship was a de facto relationship was the subject of appeal in the recent case of Denys & Kellett [2022] FedCFamC1A 223.  In this case, the applicant claimed the parties were in a de facto relationship after living together for five of the seven years of their relationship and being romantically involved.  The respondent, who sought to exclude the applicant’s claim against his substantial assets, argued the relationship never amounted to more than “friends with benefits” between a landlord and tenant.

The primary judge found in favour of the respondent and that the parties were only in a “romantic” relationship, not quite achieving de facto status.  The decision was overturned on appeal.  In the decision, the appeal court set out what was required to meet the criteria as to whether a relationship falls within the definition of a de facto relationship.

The definition of a de facto relationship is set out at section 4AA of the Act, and requires a determination that:

having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.”

The circumstances which are to be considered are set out in section 4AA(2), and include:

  • The duration of the relationship;
  • The nature and extent of their common residence;
  • Whether a sexual relationship exists;
  • The degree of financial dependence or interdependence, and arrangements for financial support between them;
  • The ownership, use and acquisition of their property;
  • The degree of mutual commitment to a shared life;
  • Whether the relationship is or was registered;
  • The care and support of children;
  • The reputation and public aspects of the relationship.

None of these factors are an essential feature for a de facto relationship to be found to exist, but rather, it is the sum of all of these circumstances which will result in a finding one way or the other.

Battles about whether a relationship is a de facto relationship or not are often difficult, as they will usually involve detailed evidence from each party, friends, family members or associates, who are often reluctant to get involved – and as much documentary evidence as possible, which does not always exist.

Overcoming the threshold question of whether a de facto relationship exists, and bringing a property claim within the family law jurisdiction can sometimes mean a substantial difference in potential outcomes, meaning the threshold question can be hard fought.  Accordingly, careful and strategic advice as to the possible outcomes, risks and commercial benefit of pursuing such a claim are essential.  It may also be beneficial to obtain strategic advice early in a relationship as to what steps to take, or avoid, to potentially eliminate the possibility of an argument about whether a de facto relationship exists or not.