“Living together” in a de facto relationship

There is often uncertainty around whether a couple is in a de facto relationship. Section 4AA of the Family Law Act 1975 provides that a person is in a de facto relationship with another person if, they are not legally married to that person, they are not related by family, and having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

“Living together” will usually mean physical cohabitation of a residence by a couple for some period of time. However, the High Court of Australia decision of Fairbairn and Radecki [2022] recognised that cohabitation of a residence is not a necessary feature of “living together”. The decision highlights the common misconception that couples who do not live together are not in a de facto relationship.  

Two people, for a variety reasons, may not live in the same residence, but nonetheless be in a de facto relationship for the purposes of the Family Law Act. Case law provides that “living together” should be construed as meaning sharing life as a couple. There are a number of circumstances in which two people may share their lives together in the modern world.  A de facto relationship can exist even if one party to the relationship is legally married to someone else or in another de facto relationship.

Section 4AA(2) provides a non-exhaustive list of factors that may be considered when determining whether a de facto relationship exists, being as follows:

1. the duration of the relationship;
2. the nature and extent of their common residence;
3. whether a sexual relationship exists;
4. the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
5. the ownership, use and acquisition of their property;
6. the degree of mutual commitment to a shared life;
7. whether the relationship is or was registered under a prescribed law of a Stateor Territory as a prescribed kind of relationship;
8. the care and support of children;
9. the reputation and public aspects of the relationship.

It is important to note that what may constitute a de facto relationship can differ from case to case. The above factors are a guide only and should be considered in the context of all of the circumstances of a matter.  If you have any questions about the contents of this article or family law in general, please contact Director, Eddy Lago on 07 4046 1133 or Associate, Kelly Whitten on 07 4046 1135.