De facto relationships create family law issue

Date: May 04, 2011

Couples who live apart may still be considered to be in a de facto relationship in the eyes of the law, several experts have asserted.

Caroline Counsel, president of the Law Institute of Victoria, commented to the Sydney Morning Herald that confusion over relationship status could represent "a potential legal timebomb ticking over".

The family law expert explained that there have been a number of cases where couples who live apart have approached family courts to settle property disputes.

Ms Counsel noted that judgements "are not a precise science" and many people may not be aware of whether or not their relationship can be considered de facto.

According to the Family Law Act, there are a number of criteria that can define a de facto relationship. Cohabiting is just one of nine criteria in this piece of legislation, which also includes the duration of the relationship, the degree of financial interdependence, public aspects of the relationship, how committed the pair are to a "shared life" and several other considerations.

Ms Counsel said: "We have had cases that looked like boyfriend/girlfriend found to be de facto, and a woman who was sure she was in a de facto relationship found to be the reverse.''

New research published by the Australian Institute of Family Studies in the journal Family Matters suggests that an estimated 1.1 million people across the country are in a committed relationship but choose not to live with their partner.

Awareness of how family law relates to de facto relationships may be particularly important for older Australian couples, the newspaper suggested.

This is because some couples - usually over the age of 45 - choose to live apart because they had already established family units in separate houses when they met.

In the event of the breakdown of a committed relationship between unmarried partners - which can include opposite-sex or same-sex couples - both parties may wish to seek legal advice to deal with their financial circumstances.

A family lawyer can help to ascertain whether the couple were in fact in a genuine de facto relationship.

If the relationship is determined to be de facto, the total period of the partnership was at least two years - subject to some exemptions - and at least one of the parties is either an Australian citizen or resident, a claim for financial settlement may be brought under the Family Law Act.