When does a relationship change from boyfriend and girlfriend to that of de-facto?

This question has led to many disputes because each person may have a different view of the relationship.

It is an important question because when those in a de facto relationship separate they may be entitled to make a claim for a property settlement against the other.

Commonly, we use ‘de facto’ as a shortening for the words ‘de facto spouse’.

For family law purposes a de facto relationship is where two people (whether of the same or opposite sex) who are not married nor related by family are in a relationship as a couple on a ‘genuine domestic basis’.

The is no clear rule on when a relationship becomes a de facto one. Ultimately it will depend on the circumstances of the individual relationship.

The Family Law Act 1975 (Cth) has a number of factors that may be taken into consideration. These include:

  • The duration of the relationship and any breaks in the relationship including if either of the couple has a relationship with other people during those breaks.
  • If the couple live together or to what to extent they did live together, such as the number of nights they spent with each other per week.
  • If the parties shared all or most facets of day to day life together
  • Whether a sexual relationship existed and, if so, whether the couple were regularly intimate.
  • If the couple had separate bedrooms they spent the night in.
  • The financial interdependence or dependence of the couple, including if one person financially supported the other and if finances intermingled and bank accounts were jointly held.
  • If the couple purchased or rented a property together, including if they were both named on the mortgage or rental agreement.
  • How the children of the relationship or children of each other from an earlier relationship were cared for and supported. Relevant factors include if the non-biological parent acted in a step-parent role, if they financially or physically supported each other’s children.
  • How the relationship presented publicly, that is, how others viewed the relationship. For instance, did each other’s family and friends know about the relationship, if they met each other’s family and friends and if those family and friends considered them a couple.

This article is for general information only and not legal advice. Legal advice should be obtained before taking any action or otherwise rely upon the content of this article in any way.

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