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November 24, 2015
The Factors in De Facto

By Robert Tedeschi

While many moons ago marriage was a prerequisite to invoke the jurisdiction of the Family Court of Western Australia, it is now widely understood that people involved in de facto relationships that subsequently breakdown can seek the assistance of the Family Court to settle property disputes between them.

What Constitutes a De Facto Relationship?

The following factors are considered when determining whether two people are in a de facto relationship:

The length of the relationship between them

Whether they have resided together

The nature and extent of common residence

Whether there is, or has existed in the past, a sexual relationship between them

The degree of financial dependence or interdependence, and any arrangements for financial support between them

The ownership, use and acquisition of their property (including property they own individually)

The degree of mutual commitment by them to a shared life

Whether they care for and support children, and

The reputation, and public aspects, of the relationship between them

It is important to note that the above factors are not considered a check list, all of which must be satisfied to be determinative of a de facto relationship. If you are wondering whether you are in a de facto relationship and most of the above criteria significantly apply to your relationship then it is likely that you are in a de facto relationship.

Generally where people have been together for a long time, live together, are involved in a sexual relationship and have completely intermingled finances , it follows that there will be a significant reputational or public aspect to the relationship.

Potential Implications of Declaring a De Facto Relationship for Tax Purposes

Quite commonly, people assert the existence of a de facto relationship on their tax return to attract some form of tax benefit. While this may have obvious tax benefits at the time, should that person make a de facto claim against you in the Family Court, denying the existence of that de facto relationship then necessarily means admitting a lie to the taxation office.

The sting here is twofold; not only does it become extremely difficult to deny the existence of a de facto relationship but the Australian Taxation Office may seek further tax payments.

A similar situation can exist when a person claims the Centrelink benefits. To be eligible for such a benefts, a person must be single and declare that they are not married or in a de facto relationship.

Should a person later wish to bring proceedings against their former de facto partner in the Family Court, then that may involve an admission of lying to the Department of Human Services and repaying the fraudulently obtained benefits.

Should you need any assistance with a family law matter please contact Sue Holgate of LBH on email at sholgate@lbandh.com.au.