By Tomas Atkins

If a Court determines that you and your partner are in a de facto relationship, they may have a claim over your assets even if you aren’t living together full-time.

Many people appear to be of the opinion that cohabitation is the determinative factor when considering if the Court will determine whether a couple are or are not in a de facto relationship. This is not the case.

Whilst it is true that the definition of a de facto relationship, pursuant to s4AA(1)(c) of the Family Law Act 1975 (Cth) includes that the couple ‘have a relationship as a couple living together on a genuine domestic basis’, recent caselaw has confirmed that the need for 100% cohabitation is not necessary.

Further, whilst cohabitation is one of several ‘indicia of a de facto relationship’ (termed ‘the nature and extent of common residence’) which the Court will take into account when considering whether a couple are in a de facto relationship, it is not the be all and end all.

The ‘indicia of a de facto relationship’ are found at s4AA(2) of the Family Law Act 1975 (Cth) and include:

(a) the duration of the relationship;

(b) the nature and extent of their common residence;

(c) whether a sexual relationship exists;

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

(e) the ownership, use and acquisition of their property;

(f) the degree of mutual commitment to a shared life;

(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

(h) the care and support of children; and

(i) the reputation and public aspects of the relationship.

The recent case of Fairbairn & Radecki [2022] HCA 18 dealt primarily with whether a de facto relationship had broken down and one of the considerations was that of ‘living together’. The High Court in this case stated at [33]:

“Living together for the purposes of Section 4AA(1) will often, perhaps usually, mean cohabitation of some residence by a couple for some period of time. Though cohabitation of a residence or residences is not a necessary feature of ‘living together’ that phrase must be construed to take account of the many various ways in which two people may share their lives together in the modern world. Two people, for any number of reasons, may not reside in the same residence, but nonetheless be in a de facto relationship in the sense required by Section 4AA.”

It is, of course, important to note that what may constitute a de facto relationship can differ from case to case, however the above demonstrates that physical cohabitation is not compulsory in order for a de facto relationship to be established.

Disclaimer

The above does not constitute legal advice, but is information which may be of general interest. Beswick Lynch Lawyers will not be held liable or responsible for any claim, which is made as a result of any person relying upon the information contained in this publication.