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What is a defacto relationship?

Podcast Episode by Pearsons Lawyers
11 May 2021

(Transcription)

Leanne Abela:
Hello, I’m Leanne Abela.

Helen Chetcuti:
And I’m Helen Chetcuti.

Leanne Abela:
And welcome to Family Law Podcast. So this is the first time Helen has done a podcast with us.

Helen Chetcuti:
Yeah, that’s right.

Leanne Abela:
So welcome to Family Law Podcast, Helen. Helen is one of our most senior lawyers at Pearsons. She’s been with the firm for 16 years, and we’ve had to put up with her for that long.

Helen Chetcuti:
That’s right.

Leanne Abela:
No, it’s wonderful. And so today’s topic, Helen is?

Helen Chetcuti:
De facto relationships.

Leanne Abela:
So what is a de facto relationship? I think, I don’t know about you Helen, but when I go to parties it is the most commonly asked question.

Helen Chetcuti:
That’s right.

Leanne Abela:
“My daughter has a boyfriend. They’ve been living together. That’s not de facto, is it?” And you say, “Well, how long have you been living together?” “Oh, five or six years.” “Yeah, that’s de facto.”

Helen Chetcuti:
That’s right.

Leanne Abela:
Or, “My daughter’s got a boyfriend, but they don’t live together. Is that de facto?” Anyway, that’s a really commonly asked question. Why? Because most people don’t want to be in a de facto relationship if it means you’ve got to divide assets.

Helen Chetcuti:
That’s right. And also if they may not be living together, I mean, we know there’s cases where they might just stay together for a few days, overnight, four nights a week and you can constitute a de facto relationship.

Leanne Abela:
Yeah.

Helen Chetcuti:
But I think they’re one of the majority of cases that we.

Leanne Abela:
Yeah, really tricky, isn’t it? Really tricky.

Helen Chetcuti:
Because the court does say it is about being a couple and living together on a genuine domestic basis, but what factors the court looks at will depend on each case.

Leanne Abela:
It’s not as clear cut as being married. Right?

Helen Chetcuti:
That’s right.

Leanne Abela:
You’re married. You’ve got a marriage certificate. You’re de facto. There’s a lot of different factors, isn’t it?

Helen Chetcuti:
Yeah. Although you can register your relationship, so-

Leanne Abela:
Have you ever had one?

Helen Chetcuti:
No. I haven’t.

Leanne Abela:
No.

Helen Chetcuti:
No. They’re not common.

Leanne Abela:
So Helen’s right. You can register your relationship, but people don’t. I don’t know why. I guess they figure if I was going to bother registering my relationship I might as well get married and get a marriage certificate.

Helen Chetcuti:
That’s right.

Leanne Abela:
So I’ve never in all my years had anybody who’s registered a relationship. That could be done since was it 2009? 2008?

Helen Chetcuti:
I think it’s 2007.

Leanne Abela:
2007. Anyway, we do know which year it is. So what is a de facto relationship? Well, it covers of course, heterosexual couples as well as same sex relationships.

Helen Chetcuti:
Yeah.

Leanne Abela:
And what gives rise to the relationship, I guess, is that usually as a rule of thumb, you’ve lived together for two years.

Helen Chetcuti:
Yeah.

Leanne Abela:
Or there’s a child.

Helen Chetcuti:
Yeah, there’s a child. There’s a common residence that you generally share, but that’s not always the case. I mean, sometimes as I’ve said, there’s been cases where some people are married and also have a de facto relationship. So you may have more than one party to a proceeding which would claim.

Leanne Abela:
Or there’s a sexual relationship. I was giving a conference the other day and one of the women said, “But what if you’ve lived together, but you haven’t had sex?” I said to this particular participant at the conference, “Well, how long have they lived together, this couple?” “Oh, 10 years, but they haven’t had sex for 10 years.” I said, “Well, married couples sometimes haven’t had sex for 10 years, but they’re still married.” I don’t think the fact that they may not have an intimate relationship means they’re not de facto.

Helen Chetcuti:
That’s right.

Leanne Abela:
They can still be de facto.

Helen Chetcuti:
Also, how other people perceive you. If you get an invitation jointly to an event such as a wedding or engagement and people perceive you as a couple, that’s also a factor that the court can consider as to what constitutes a de facto relationship.

Leanne Abela:
What they call the public aspect of the relationship.

Helen Chetcuti:
That’s right.

Leanne Abela:
So what is the public aspect? Do people always know Mary and Tom, they’re a couple, they live together, et cetera. So the public aspect, the care of the children, as we said, if you’re caring for children. I guess the commitment to a shared life.

Helen Chetcuti:
That’s right.

Leanne Abela:
I did one where the parties had two separate residences. They lived in their two separate residences, but sometimes on the weekends, in fact most weekends, there might’ve been a one night sleepover. Clothes in separate houses, but a couple of things that he had in her wardrobe, but not most of it. The right Medicare addresses were separate on their Medicare Care card, licenses. But my client, or the male, had signed a document saying he would participate in IVF with her as a couple. And so that pretty much makes them a de facto couple. So, that sort of thing. Yes.

Helen Chetcuti:
Whether they declared on a tax return, that’s another important indicator.

Leanne Abela:
Yes, because that’s a commitment to a shared life.

Helen Chetcuti:
But there is times, or I’ve had cases where they’re not listed on the tax return as a de facto couple, but they have been found to be in a relationship. So that doesn’t either exclude it as a defector relationship.

Leanne Abela:
If you don’t want to be in danger of being in a defacto relationship, and there lots of people who don’t want to be, because it’s their second or third relationship, et cetera. Or they might have two relationships going at the one time, be married, but also have a relationship going because that can happen. You can be de facto with Mary and married to Jane at the one time. So if that’s the case and you don’t want to be in danger of being de facto then you just don’t live together at all. You don’t have any of those elements of a promise, of a shared residence in the future, that you’re going to buy something and live together.

Leanne Abela:
You don’t merge finances and you don’t pay for each other’s holidays.

Helen Chetcuti:
That’s right.

Leanne Abela:
You don’t pay for each other’s health insurance or doctors appointments. You keep things very straight and down the line and very separate. And you date with some sleep overs, but not regular common sleep overs.

Leanne Abela:
So if you are unsure about whether or not you’re in a de facto relationship, or for some people they want to know if their children are in a de facto relationship before they give them a deposit on the house or money, then I think it’s wise to come in to Pearsons and obtain a free appointment from one of our many solicitors so that we can give you some guidance on where you stand in that regard.

Helen Chetcuti:
That’s right.

Leanne Abela:
So if you do want your free appointment contact Pearsons on 1300 699 688 and we can book you in with a consultation.

Leanne Abela:
So thank you, and for now goodbye from Leanne.

Helen Chetcuti:
And Helen. Have a nice night.

Leanne Abela:
And thank you for listening.

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