This is an important question to ask, because being in a de facto relationship can have significant implications in relation to social security, income tax, wills and estates, and other areas of the law. It also means that if you separate, you or your partner may have a claim for property adjustment, superannuation splitting, and/or partner maintenance under the Family Law Act.
In most situations the answer to the question is clear. If you are living with another person in a couple-like relationship (same-sex or opposite sex), then you are in a de facto relationship. But sometimes the answer is less clear. What if you have two homes, but spend three or four nights a week together in the one home? What if you live together but you keep your finances completely separate? What if you live together but don’t have a sexual relationship? What if no one knows you are a couple? What if you or your partner is claiming social security as a single person?
You could still be found to be in a de facto relationship in any of these circumstances. A court asked to determine this question will look at all of the circumstances to make a decision as to whether or not you are in a de facto relationship. You may “drift” into a de facto relationship without knowing it, or intending it.
For the Family Law Act to apply you must usually be in a de facto relationship for two years before legal implications flow- but not always. If you have a child together, or if one person has made significant contributions, a shorter de facto relationship may attract legal consequences.
Anyone concerned about whether or not they are in a de facto relationship, and about the legal consequences of this, should consult a lawyer. One option is for you and your partner to enter into a Binding Financial Agreement setting out what will happen to property and superannuation you own if you separate, and also dealing with partner maintenance. These documents need to be drafted with care to ensure that they comply with the requirements of the Family Law Act, and do what they are intended to do. Both parties need to have independent legal advice, and their lawyers need to sign statements to that effect. Even if you do not take this step, preparing lists of what each of you own (with values) when you commence a relationship, can assist to resolve matters if you separate.
As with any significant transition point, it is a good idea to review your Will, Power of Attorney and nominated superannuation beneficiaries on forming a relationship, and at regular intervals thereafter.
