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Flat mate or de facto partner?

The Property (Relationships) Act 1976 (“The Act”) provides an equal sharing presumption to relationship property for qualifying relationships. Qualifying relationships are marriages, civil unions or de facto relationships that are a minimum of three years in duration.

Section 2D of the Act defines a de facto relationship as a relationship between two persons who are both aged over 18 years, who “live together as a couple” (either heterosexual or same sex relationships) and are not married or in a civil union to one another. 

If the parties are under the age of 18 years, the de facto relationship starts from the time the younger partner turns 18 years old.

In determining whether two persons are “living together as a couple”, all circumstances of the de facto relationship are to be taken into account including the matters recorded at section 2(D)(2), which are:

• The duration of the relationship.
• The nature and extent of the common residence of the relationship.
• Whether or not a sexual relationship exists.
• The degree of financial dependence or interdependence and any arrangements for financial support, between the parties.
• The ownership, use, and acquisition of property.

• The degree of mutual commitment to a shared life.
• The care and support of children (either from that relationship or from previous relationships).
• The performance of household duties.
• The reputation and public aspects of the relationship, that is, how others view the relationship.

None of the above factors are essential to determine whether the parties are living together as a couple and the Court is entitled to attach such weight to any matter as is appropriate in the circumstances of that relationship.

Marriages and Civil Unions are legal processes, which require the parties to opt in from an agreed commencement date. However, there is no formal process that records the commencement date of de facto relationships. This means people may find their relationship has become a de facto relationship without both parties realising, or acknowledging it.

This can have important implications for the financial and property owning arrangements of the parties to the relationship.  Sometimes those implications are unintended by one or both partners - and in some circumstances they can be unfair.   By agreement it is possible for the partners to a relationship to take active steps to “contract out” to a greater or lesser extent of the relationship property regime imposed by the Act.

So it is important for the partners in these relationships to be aware of how the law in this area impacts on them – and where it is warranted consider contracting out of the presumptions imposed by the Act.   Our family lawyers are available to assist with advice about this.