The legal requirements of a de facto relationship

This is an extract from Lawbook Company's Nutshell: Criminal Law   by Geoff Monahan (Sydney: LBC, 1999, 1st ed). LBC Nutshells are the essential revision tool: they provide a concise outline of the principles for each of the major subject areas within undergraduate law. Written in clear, straightforward language, the authors clearly explain the principles, and highlight key cases and legislative provisions for each subject. Recognition of de facto relationships While marriage and de facto relationships are similar in most respects, the law does not treat these relationships in the same way. As a de facto relationship is not, strictly speaking, a relationship recognised at common law, the courts have established no legal requirements for the formation of this type of relationship. Nevertheless, it is accepted that a de facto relationship may arise when a man and a woman cohabit together voluntarily on an intimate, domestic basis: see In the Marriage of L  (1984) Fam LR. In AA Tegel Pty Ltd v Maddern  (1985) NSWLR Kirby P described a de facto relationship as a relationship between an unmarried couple who live together sharing domestic circumstances and who are bound by affection and, usually, sexual relations. Problems arise, however, as to the length and quality of the cohabitation required for formation purposes. This difficulty has been overcome, to some extent, by statutory intervention. Generally speaking, a de facto relationship only arises when the parties live in a genuine and permanent domestic relationship. While the minimum period varies, it is usually between two and three years. Unless a minimum period is prescribed, a de facto relationship may arise after a short period of cohabitation: see Tobin v Executor of Hardy's Estate (No.2)  (1992) DFC. State and Territory legislation New South Wales (1984), Victoria (1987), the Northern Territory (1991) and South Australia (1996) have enacted specific legislation to provide de facto partners with some of the more important rights enjoyed by married couples. The South Australian legislation defines a de facto relationship is defined as "the relationship between a man and a woman, who although not legally married to each other, live together on a genuine domestic basis as husband and wife". While similar definitions are found in the other state and territory legislation, the Australian Capital Territory has given similar rights to partners in a 'domestic relationship'. A domestic relationship means "a personal relationship (other than a legal marriage) between 2 adults in which 1 provides personal or financial commitment and support of a domestic nature for the material benefit of the other, and includes a de facto marriage". In D v McA  (1986) Fam LR Powell J held that to determine whether a relationship falls within the NSW definition of de facto partner will involve the court in making a value judgment. The court will have regard to a variety of factors relating to the particular relationship, including (but not limited to) the following:
  • the duration of the relationship;
  • the nature and extent of common residence;
  • whether or not a sexual relationship existed;
  • the degree of financial interdependence, and any arrangements for support, between or by the parties;
  • the ownership, use and acquisition of property;
  • the procreation of children;
  • the care and support of children;
  • the performance of household duties;
  • the degree of mutual commitment and mutual support; and
  • reputation and 'public' aspects of the relationship.
Cases such as D v McA  also make it clear that a person may be in a de facto relationship notwithstanding that they are married to another or engaging in a sexual or other close relationship with another. While it is a little unclear whether a party can have multiple de facto partners at the same time, it is suggested that this is possible because to exclude such relationships would lead to injustice. While the court can order property orders under all the state and territory statutes, limited spousal maintenance rights are only available in NSW, the Northern Territory and the Australian Capital Territory. A minimum two year relationship (three years in South Australia) must exist before a court can entertain an action for property (and/or spousal maintenance) order(s). In Queensland, Western Australia and Tasmania, the rights of non-married couples whose relationship breaks down are presently governed exclusively by the general law (although there are some statutory maintenance rights in Tasmania). These three states have considered implementing comprehensive legislation and draft bills were prepared in Queensland (1993), Western Australia (1995) and Tasmania (1997), with only the Tasmanian bill still under active consideration. Geoff Monahan BA (Macq) LLB (Syd) LLM (NSW) Solicitor and Public Notary of the Supreme Court of New South Wales Senior Lecturer, Faculty of Law University of Technology, Sydney


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