How de facto do you need to be? Analysing the Family Court’s determinations on whether a relationship is “de facto” under the Family Law Act

Family law processes within the Courts
Thursday 26 July, 1300 – 1320


Dr Michelle Fernando
School of Law, University of South Australia

Non-married partners applying to the Family Court of Australia for property matters following separation must first pass the threshold test of having been in a “de facto relationship” for the purposes of SECT 4AA of the Family Law Act 1975 (Cth) (“the Act”). Those who are unable to meet the definition cannot claim property settlement, maintenance or any other financial relief. The Court is guided by a list of factors, none of which is considered determinative or necessary.

This research examined all of the cases where the Court has considered whether a couple was in a de facto relationship. The cases indicate that the absence of some factors, such as common residence, financial support or joint finances, will not be fatal to determining that a de facto relationship existed.

However, where there is a lack of mutual commitment to a shared life or few public aspects to the relationship, the Court is less likely to find that the threshold has been met, even where other factors are present. This has particular implications for parties whose relationships do not fit the traditional “marriage-like” model. There may be good reasons why partners structure their finances and living arrangements in a different way, or do not publicise their relationship.

Nevertheless, significant contributions and sacrifices may be made. There is a real danger that parties may find, upon their relationship ending, that it is not legally recognised. This has potentially dire consequences, particularly for weaker parties, which are contrary to the objectives of the Act.