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Proving a De facto relationship in the Family Courts

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  • Christian Tager
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  • October 12, 2015

Proving a De facto relationship in the Family Courts

Diamond Conway Legal Article

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When the Federal government introduced the Family Law Amendment (De Facto Financial Matters and other Measures) Act 2008 (Cth) it signified an important recognition of the rights of de facto spouses in the Family Law jurisdiction. The legislation served to confer on same-sex and opposite-sex de facto couples the same rights enjoyed by married couples under Family Law.

This meant that de facto couples were able to apply to the Family Law Courts for relief in respect of financial matters.[1]

However, one important procedural difference remains between married and de facto couples. For married couples, it is simply a matter of applying for the Courts’ relief once the relationship has broken down. On the other hand, de facto couples must first prove to the Court that in actual fact a de facto relationship existed between the parties. So in effect, the Courts’ function in a de facto matter is to firstly determine whether the Court has jurisdiction to hear the matter by examining whether a de facto relationship existed, and secondly whether the relief sought by an applicant ought to be granted. This article explores the first exercise stage by examining the factors the Court considers in determining whether a de facto relationship existed.


Section 4AA: Establishing a de facto Relationship

Before determining any financial matters that arise between de facto spouses, the Court must first be satisfied and declare[2] that a de facto relationship as defined under the Family Law Act 1975 (Cth) (‘the FLA’) existed. Section 4AA of the FLA sets out the criteria which the Court is to rely upon in making any declaration establishing the existence of a de facto relationship.

The first two requirements are straightforward and simply state that the parties should not be legally married,[3] nor should they be related by family.[4] The third requirement is usually the contentious one, stating that the parties must have had a relationship as a couple living together on a genuine domestic basis.[5]

In the vast majority of cases where the existence of a de facto relationship is in dispute, it is because one party is denying the assertion that they had a relationship as a couple together on a genuine domestic basis. So it becomes the Courts’ role to determine whether this was in fact the case. In doing so, the Court looks to the following factors:[6]

  1. the duration of the relationship;
  2. the nature and extent of their common residence;
  3. whether a sexual relationship existed;
  4. the degree of financial dependence or interdependence and any arrangements for financial support between them;
  5. the ownership, use and acquisition of their property;
  6. the degree of mutual commitments to a shared life;
  7. whether the relationship is or was registered under a prescribed law of a State or Territory;
  8. the care and support of children; and
  9. the reputation and public aspects of the relationship.

While helpful, not all factors are essential or necessary in order to establish a de facto relationship,[7] so for example if a couple do not raise children together, that is not fatal to any claim that a de facto relationship existed between the parties. Instead, the Courts are entitled to attach any weight they deem appropriate to these factors in determining whether the parties had a relationship as a couple on a genuine domestic basis.[8]


Section 90SB: Jurisdictional ‘Gateway’ Requirements

In addition to Section 4AA, an applicant is required to demonstrate that the Court has jurisdiction to determine a matter. This is done by showing at least one of the four ‘gateway’ requirements contained in Section 90SB of the FLA. These ‘gateway’ requirements include:

  1. the relationship lasted for a total of two years, but this period need not be continuous;[9]
  2. there is a child of the relationship;[10]
  3. the party seeking relief made contributions to the relationship and it would cause a serious injustice if relief is not granted;[11] or
  4. that the relationship is or was registered under a prescribed law of a State or Territory.[12]


Relevant Cases

In Taisha & Peng,[13] Cronin J noted that when faced with the question of whether a de facto relationship existed, it is necessary to look at the entire relationship as a whole, or to borrow his Honour’s words, ‘it is the composite picture that must be looked at.’[14] His Honour also said that a domestic relationship is likely to exist where the evidence shows that the relationship is one in which there are activities of running a household or shared households.[15]

Similarly, in Jonah v & White[16] Murphy J concluded that in judging whether the parties were a couple on a genuine domestic basis, emphasis is placed on the notion of ‘coupledom’ which is signified by the merger of two lives.[17] On appeal, the Full Court agreed with his Honour’s interpretation of Section 4AA.[18]

Mushin J in Moby & Schulter[19] acknowledges the fact that de facto relationships are incredibly diverse and that no two relationships will be the same.[20] In light of this, the phrase ‘genuine domestic basis’ must be approached in a manner cognisant of modern conceptions of ‘relationship.’[21]

In Dillard & Graham,[22] Bender J provides a concise summary of the relevant authorities on the interplay between Section 4AA(1) and (2),[23] and her Honour’s judgment offers a useful illustration of how Section 4AA(2) is treated judicially.[24]


In summary, the key note to be taken from this article is that in spite of clearly enunciated guidelines in the legislation, judging whether or not a de facto relationship existed between two people for the purposes of Family Law is not a formality. It requires careful consideration by the Court and it is difficult to judge which factors may carry weight, if any, in a Judge’s reasoning. In practice, it is imperative that practitioners are astute to the factors outlined above. At Diamond Conway, our wealth of experience in such matters has assisted us in consistently providing exceptional legal advice to clients who are in de facto relationships, or are unsure whether they are and what their legal rights and obligations may be.

If you have any queries in relation to de facto law or would like some information as to your rights and obligations, one of our Family Law specialists would be happy to take your call on 02 9222 8000 or see our page on de facto relationships.

[1] See Family Law Act 1975 (Cth) Part VIIIAB (‘FLA’).

[2] See FLA s 90RD(1) for Courts’ jurisdiction to make declaration orders regarding the existence of a de facto relationship.

[3] Ibid s 4AA(1)(a).

[4] Ibid s 4AA(1)(b); s 4AA(6) defines ‘related by family’.

[5] Ibid s 4AA(1)(c).

[6] FLA s 4AA(2)(a)-(i).

[7] Ibid s 4AA(3).

[8] Ibid s 4AA(4).

[9] Ibid s 90SB(a).

[10] Ibid s 90SB(b).

[11] FLA s 90SB(c)(i)-(ii).

[12] Ibid s 90SB(d).

[13] (2012) 48 Fam LR 150.

[14] Ibid [13] (Cronin J) (emphasis added).

[15] Ibid [20] (Cronin J).

[16] [2011] FamCA 221.

[17] Ibid [60] (Murphy J).

[18] Jonah & White [2012] FamCAFC 200 [44] (May Strickland & Ainslie-Wallace JJ).

[19] [2010] FamCA 748.

[20] Ibid [167] (Mushin J).

[21] Keene & Scofield (No.2) [2013] FCCA 1107 [43] (Brown J).

[22] [2014] FCCA 1842.

[23] Ibid [41] (Bender J).

[24] Ibid [61]-[121] (Bender J).