evidence of a de facto relationship

De Facto Law & You

De facto relationships and de facto jurisdiction matters, where the applicant is required to prove the existence of a de facto relationship by presenting to the Court evidence of a de facto relationship are clogging both he Federal & Family Courts. These types of matters are now dealt with under the Family Law Act 1975. There has been significant change to de facto relationship laws affecting all states of Australia except Western Australia. Western Australia require the Commonwealth Government to deal with de facto relationship property division & adjustment. Same sex relationships are dealt with within the act in exactly the same way as heterosexual relationships are dealt with.

evidence of a de facto relationshipDe facto relationship laws state that you are in a de facto relationship if you are not betrothed to your partner, you are not related by family and you live or have lived together as a couple on a genuine domestic basis. This has implications for many people who are living with a partner but do not consider themselves to be in a de facto relationship and have an interest in protecting assets in a de facto relationship.

A lot of weight is placed on the term “living together on a genuine domestic basis” when seeking to prove a de facto relationship for the purposes of a de facto property adjustment. The courts will use a set of criteria when assessing if you are living together on a genuine domestic basis & require evidence of a de facto relationship, including:

  • the length of the relationship (periods can be aggregated to form a total);
  • did you live together;
  • did a sexual relationship exist;
  • the degree of financial dependence or interdependence and arrangements for financial support;
  • the ownership, use and acquisition of property;
  • the decree of mutual commitment to a shared life;
  • whether the relationship is or was registered under a prescribed law of a State/Territory;
  • the care and support of children; and
  • the reputation and public aspects of the relationship

De facto relationship laws state that a person could have multiple de facto relationships at the one time, or that a person could be legally married to another person and still be a party to de facto property proceedings providing there is evidence of a de facto relationship.

Evidence required by the Courts can take many forms, you will need to demonstrate that you have lived together for at least two years. This is overlooked if you have a child together, or in other exceptional circumstances. Irrespective of how many breaks in the relationship may have occurred, de facto relationship laws allow for the periods you were living together to be summed or aggregated.

Other jurisdictional requirements for de facto couples include:

In order to be successful in a de facto claim you must first ensure your relationship meets the legal definition of a de facto relationship. The applicant seeking orders must also meet one of the jurisdictional requirements specified at Section 90SB of the Family Law Act:

  • the total period of the relationship was at least 2 years or that the total period of the relationship was greater than 2 years; or
  • a child was born to the de facto relationship; or that:

(i) the applicant for orders has made substantial contributions such as; financial, homemaking or through joint endeavour; and

(ii) failure to make an order or declaration would mean a serious injustice to the applicant; or that the relationship is or was registered.

You might be thinking “of course I am in a de facto relationship, I will never need the courts to decide that for me”. To that we say, don’t bet on it!

evidence of a de facto relationship“I was in an 8 year de facto relationship. We had a number of breaks in our relationship but always got back together. I really loved him! I didn’t have an affair or fall out of love with him. Over the 8 years we were engaged twice & our Mum’s were good friends. We had a wide circle of friends & were in the process of buying a house for my Mum to live in when we broke up. We travelled together often, worked hard & built wealth together as a couple.

Shortly after my ex ended our relationship for the final time he evicted me from the property we had renovated together. I left peacefully with one suitcase of clothes under police escort. It was just awful. I couldn’t believe that he was capable of treating me that way but he did. The property was in his name and I quickly realized I had very few rights to the home I believed I had a share in. After he evicted me from the home we shared he simply refused to discuss any sort of de facto relationship property adjustment, advising me through his lawyer that I was not entitled to one.

I was forced to file proceedings in the Family Court seeking the return of the balance my belongings, a de facto relationship property adjustment & spousal maintenance. If you think this could never happen to you, think again. My ex challenged the jurisdiction of the Family Court to hear the matter as he denied that we were in a de facto relationship of at least 2 years &/or that I made any contributions to our property. I then had to find all sorts of evidence of a de facto relationship to support my application.

What followed was a costly & often brutal legal battle over 14 months. His strategy was simply to wait me out & force me to spend what little money I had available on legal fee’s. It was a frightening time filled with so many unknowns.

In the end he settled with me on the day of the Court hearing to determine if we were in a de facto relationship.

The courts are filled with these types of matters where one party to the relationship uses a jurisdiction challenge to force the other to fight. Keep in mind when one party challenges the jurisdiction of the court you are forced to prove the relationship was in fact a de facto relationship before the court can even entertain a de facto relationship property adjustment.

It was possibly the most difficult thing I have ever faced. Not only was I dealing with the end of a relationship I was very invested in but I was forced to fight for my financial life at the same time”.

De facto relationship laws have very real implications for couples that are living together but who do not see themselves as a de facto couple or do not want to be subject to de facto relationship laws. You will find that these laws apply to you irrespective of your personal wishes. For couples in this position protecting assets in a de facto relationship becomes paramount. This can be done by negotiating a Binding Financial Agreement with your partner.

Remember, the information contained on the site does not constitute legal advice. If you think you need legal advice you should contact an Accredited Family Law Specialist.

We have a suite of resources on the site that can help you build your knowledge about de facto relationship laws & what evidence of a de facto relationship is required by the courts. Scroll through the resources below or click through to the resources tab and filter based on your areas of interest. If you want to access our resources you can join the site as a member or simply purchase the individual resources you require.

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    • Bronze Resource
      Mock-Relationship-Outline-Letter

      Living Together Checklist

      This resource explores issues associated with living together including; marriage, children, finances & much more……....
      Mock-Relationship-Outline-Letter
    • Silver Resource
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      Existence of a Relationship Checklist

      This resource details the criteria a Court would use to determine the status of a relationship in an easy to understand format……....
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    • Free Resource
      Mock-Relationship-Outline-Letter

      Property & Financial Matters Upon De Facto Relationship Breakdown

      This free resource provides a general outline of the relevant Family Law reforms, their genesis & much more…......
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    • Gold Resource
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      Child Support Fact Sheet

      This resource details issues relations to child support including: payment procedures, calculation & much more…......
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    • Gold Resource
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      Consent Orders Fact Sheet

      This resource details issues relation to consent orders including; parenting plans v’s consent orders & much more…......
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    • Gold Resource
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      De Facto Relationship Fact Sheet

      This resource details issues relating to de facto relationships including; relationship criteria, BFA’s & much more…......
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    • Bronze Resource
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      Family Violence Fact Sheet

      This resource details family violence issues including; court process, defining family violence & much more…......
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    • Silver Resource
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      Binding Financial Agreement Fact Sheet

      This resource details issues relating to BFA's including; advantages & disadvantages, inclusions & much more……....
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    • Gold Resource
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      Mediation & Family Dispute Resolution Fact Sheet

      This resource details issues relating to mediation & dispute resolution including; tips & strategies for mediation……....
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    • Platinum Resource
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      Property Settlement Fact Sheet

      This resource details issues relating to property settlement including: court process, superannuation splits & much more……....
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    • Platinum Resource
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      Spousal Maintenance Fact Sheet

      This resource details issues relating to spousal maintenance including: calculation, time limits & payment issues……....
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    • Gold Resource
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      Draft Applicant Case Outline

      This resource sets out case strategy for an Applicant in a de facto jurisdiction matter & much more….....
      Mock-Relationship-Outline-Letter
    • Silver Resource
      Mock-Relationship-Outline-Letter

      Binding Child Support Agreement Template

      This resource enables parents to document child support arrangements & includes instructions for completion…......
      Mock-Relationship-Outline-Letter
    • Platinum Resource
      Mock-Relationship-Outline-Letter

      Pre De Facto BFA Sample Clauses Template

      This resource provides a set of sample clauses which are editable & can be attached to a pre de facto BFA……....
      Mock-Relationship-Outline-Letter
    • Silver Resource
      Mock-Relationship-Outline-Letter

      Financial Statement Family Law Court Template

      This resource is a financial statement & must be completed & filed with the Court in order to commence proceedings……....
      Mock-Relationship-Outline-Letter
    • Gold Resource
      Mock-Relationship-Outline-Letter

      Limited Child Support Agreement Template

      This resource enables parents to document child support arrangements & review them every 3 years…......
      Mock-Relationship-Outline-Letter
    • Platinum Resource
      Mock-Relationship-Outline-Letter

      Cohabitation Agreement Sample Clauses Template

      This resource provides a set of sample clauses which are editable & can be attached to a cohabitation agreement……....
      Mock-Relationship-Outline-Letter
    • Platinum Resource
      Mock-Relationship-Outline-Letter

      Pre De Facto Relationship BFA Template

      This resource enables couples who are not yet living together to create their own BFA & is fully editable……....
      Mock-Relationship-Outline-Letter
    • Bronze Resource
      Mock-Relationship-Outline-Letter

      Schedule of Assets & Liabilities Template

      This resource provides structure for declaring all of assets & liabilities & is used during the settlement process……....
      Mock-Relationship-Outline-Letter
    • Platinum Resource
      Mock-Relationship-Outline-Letter

      Separation Agreement Lump Sum Super Split Template

      This resource is a tool to aid in the settlement of all financial matters post separation & is fully editable…......
      Mock-Relationship-Outline-Letter
    • Platinum Resource
      Mock-Relationship-Outline-Letter

      Separation Agreement Percentage Super Split Sample

      This resource enables you to review a completed separation agreement with a percentage super split…….....
      Mock-Relationship-Outline-Letter
    • Platinum Resource
      Mock-Relationship-Outline-Letter

      Separation Agreement Percentage Super Split Template

      This resource is a tool to aid in the settlement of all financial matters post separation & is fully editable…......
      Mock-Relationship-Outline-Letter
    • Gold Resource
      Mock-Relationship-Outline-Letter

      Draft Respondent Case Outline

      This resource sets out issues pertinent to defending a de facto jurisdiction matter & much more……....
      Mock-Relationship-Outline-Letter
    • Gold Resource
      Mock-Relationship-Outline-Letter

      Separation Agreement Sample Clauses Template

      This resource provides a set of sample clauses which are editable & can be attached to a separation agreement……....
      Mock-Relationship-Outline-Letter
    • Gold Resource
      Mock-Relationship-Outline-Letter

      Shared Parenting Plan Agreement Template

      This resource enables parents to clearly document parenting arrangements & provides a structure for discussions…….....
      Mock-Relationship-Outline-Letter
    • Bronze Resource
      Mock-Relationship-Outline-Letter

      Superannuation Information Kit Family Court Template

      This resource provides you with a template to detail all of your superannuation entitlements & is used during separation……....
      Mock-Relationship-Outline-Letter
    • Bronze Resource
      Mock-Relationship-Outline-Letter

      Will & Testament Template

      This resource provides you with an editable template to create & manage your Will easily & cost effectively…….....
      Mock-Relationship-Outline-Letter
    • Bronze Resource
      Mock-Relationship-Outline-Letter

      Will Notes To Executor Template

      This resource provides you with an editable template to create executor notes & manage all Will reviews…….....
      Mock-Relationship-Outline-Letter
    • Platinum Resource
      Mock-Relationship-Outline-Letter

      De Facto BFA Template

      This resource enables couples who are living together to enter into a Binding Financial Agreement & is fully editable……....
      Mock-Relationship-Outline-Letter
    • Gold Resource
      Mock-Relationship-Outline-Letter

      Pre De Facto Relationship BFA User Guide

      This resource sets out how to complete the Pre De Facto Binding Financial Agreement Template…......
      Mock-Relationship-Outline-Letter
    • Silver Resource
      Mock-Relationship-Outline-Letter

      De Facto BFA User Guide

      This resource sets out how to complete the De Facto Binding Financial Agreement Template…......
      Mock-Relationship-Outline-Letter
    • Gold Resource
      Mock-Relationship-Outline-Letter

      Pre De Facto BFA Sample

      This resource provides you with a completed sample Pre De Facto Binding Financial Agreement and can be used as a guide……....
      Mock-Relationship-Outline-Letter
    • Gold Resource
      Mock-Relationship-Outline-Letter

      De Facto BFA Sample

      This resource provides you with a completed sample Binding Financial Agreement and can be used as a guide……....
      Mock-Relationship-Outline-Letter
    • Platinum Resource
      Mock-Relationship-Outline-Letter

      How To Make A Living Together Agreement

      This resource explains why having a living together agreement protects you & your partner in the event of a breakup & much more….......
      Mock-Relationship-Outline-Letter
    • Bronze Resource
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      Will & Testament User Guide

      This resource sets out how to complete the Will & Testament template. Always update you Will after a relationship breakdown………....
      Mock-Relationship-Outline-Letter
    • Silver Resource
      Mock-Relationship-Outline-Letter

      Draft Applicant Relationship Letter

      This resource sets out the Applicant’s approach in a de facto jurisdiction matter. It highlights the strategy used & much more…......
      Mock-Relationship-Outline-Letter
    • Bronze Resource
      Mock-Relationship-Outline-Letter

      Budget Worksheet

      This resource helps identify costs associated with living together as a couple & provides a fully editable budget….......
      Mock-Relationship-Outline-Letter
    • Silver Resource
      Mock-Relationship-Outline-Letter

      Draft List Of Discovery Documents

      This resource details a draft list of discovery documents requested by an Applicant in a de facto jurisdiction matter…......
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    • Silver Resource
      Mock-Relationship-Outline-Letter

      Response to Draft Relationship Outline Letter

      This resource sets out the Respondent’s approach in a de facto jurisdiction matter. It highlights the strategy used & much more…......
      Mock-Relationship-Outline-Letter
    • Gold Resource
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      Draft Applicant Response to Witness Affidavit

      This resource highlights the process involved in responding to a witness affidavit & includes tips for responding effectively…......
      Mock-Relationship-Outline-Letter

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