The concept of a defacto relationship often raises complex questions, particularly when the parties involved have differing views on key aspects of their shared life. In Australian family law, a defacto relationship is defined not by rigid criteria but by the nature and degree of mutual commitment between the parties. This discussion examines the legal framework under section 4AA of the Family Law Act, emphasising the nuanced and flexible approach taken by courts in determining whether a defacto relationship exists.
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DeFacto Relationship Under Australian Law
Is there a defacto relationship if one party wanted the parties to live together in a common residence and the Appellant did not?
Parties do not need to live together in order to be in a defacto relationship if they are sharing life as a couple. This, however, does not mean that every couple sharing life is necessarily living in a defacto relationship. The Court must have regard to all of the evidence, including to the matters referred to in s 4AA(2) of the Family Law Act. On one view, the phrase “sharing life” is simply a general summary of the s 4AA(2) circumstances.
No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the parties were in a defacto relationship. None of the matters referred to in section 4AA(2) has precedence over any other, nor must all necessarily be found before a finding of a de facto relationship is made. The Court is entitled to have regard to such matters, and attach such weight to any matter, as may seem appropriate in the circumstances.
Pursuant to S4AA(2) of the Family Law Act, the Court will evaluate the following criteria to classify a relationship as de facto. However, it is essential to remember that not all of these criteria must be satisfied to classify a relationship status as de facto:
- The couple had a genuine romantic relationship, living together for at least two years.
- There are children of the defacto relationship.
- The degree of financial aspects dependence between the parties.
- The degree of mutual commitment towards a shared life.
- Ownership, use, and acquisition of property between the parties.
It is also essential to understand that a defacto relationship may exist, even if one of the parties is legally married to another person or in a defacto relationship with another person.
The ultimate test of a defacto relationship, as prescribed by s 4AA(1) of the Act, is whether the parties have a “relationship as a couple living together on a genuine domestic basis.” While one indicium of that test is the degree of the parties’ commitment to “a” shared life, their commitment must still be “mutual” (s 4AA(2)(f)). It is difficult to see how a commitment to a shared life could be mutual unless both parties were committed to the same type of shared life. Without such mutuality of commitment, it is difficult to see how the parties could be a “couple” in a “genuine domestic” sense (s 4AA(1)(c)).
Furthermore, in assessing the degree of mutual commitment to a shared life, it is not essential that there be entire harmony, fidelity, or satisfaction with the relationship. The degree of commitment may be high even though there are qualifications. Dissatisfactions, infidelities, expressed complaints, grievances, and less-than-entire commitment are often found in personal relationships, including marriages, and are not inconsistent with a relationship of two parties having a relationship as a couple living together, but not married to one another.
Relationships are dynamic, not static. No relationship could ever perennially be in a state of entire harmony. But while the mutuality of commitment need not “entirely” correlate for the “entirety” of the time for the parties to be in a defacto relationship, without substantial overlap in the nature of parties’ individual commitments, their commitments could hardly be mutual. Parties can be dissatisfied with the health of their relationship from time to time and yet still be in an intact defacto relationship. Whereas if they have fundamentally different ideas about the nature of their relationship, then it is unlikely they are in any mutual form of relationship.
“Living together” should be construed as meaning sharing life as a couple. Section 4AA does not prescribe any way by which a couple may share life together. Its language is sufficiently broad to accommodate the great variety of ways a defacto relationship may exist. That conclusion is supported by the varied factors listed in s 4AA(2). In a given case, some of the factors listed in s 4AA(2) may be relevant and some may be irrelevant. Inevitably some may have greater prominence than others. A genuine de facto relationship is not to be determined in the same way in every case by reference to rigid criteria that must always be satisfied.
The calling of a witness to support the contention of a defacto relationship, that is, adducing documentary evidence to corroborate the contention of a de facto relationship, is not mandatory but is advisable. The failure of a party to give or produce supporting evidence which, in the circumstances, that party in his or her own interest would be expected to give or produce warrants the conclusion that there was no defacto relationship. If given or produced, the evidence would support the party’s case.
Conclusion
In determining whether a defacto relationship exists, courts adopt a flexible approach that recognises the diverse ways couples may share their lives. The analysis under s 4AA of the Family Law Act considers various factors, none of which is decisive in isolation. Ultimately, the essence of a de facto relationship lies in mutual commitment to a shared life on a genuine domestic basis. While each case is unique, the guiding principles ensure that the assessment reflects the realities of contemporary relationships rather than rigid, prescriptive rules.
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