De Facto Relationships

Contributed by HenryMoser and current to 27 July 2018

What is a de facto relationship?

A de facto relationship exists when two persons are in a relationship which has marriage-like qualities. No two de facto relationships are the same, but there are a number of factors that are taken into account to establish whether a de facto relationship exists.

In Western Australia they are set out in s.13A of the Interpretation Act 1984 (WA). They include:

• the length of the relationship;
• whether the 2 persons have resided together;
• the nature and extent of common residence;
• whether there is, or has been, 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.

In addition, it makes no difference whether the partners in the relationship are of the same sex, or whether either of the partners is still validly married to another person.

When does a de facto relationship start or end?

Because there is usually no ceremony when two persons start or end a de facto relationship, there are no exact rules and each case has to be looked at individually in light of the factors set out above.

As a general rule, most de facto relationships start when the partners move in with each other and end when they stop sharing the same residence, but it is possible for a de facto relationship to exist without the partners ever sharing a common residence.

Wills and estates

Starting or ending a de facto relationship has no effect on any valid will. It is therefore necessary to review one’s will when starting a de facto relationship, and after it has ended, to make sure that the will still sets out what should happen with one’s estate.

Breakdown of a marriage or de facto relationship

These days there is a strong emphasis on parties to a marriage or de facto relationship finding their own solutions to any issues arising from the break up of their relationship.

There are many counselling and advice services available.

There is also now a requirement for parties to engage in Alternative Dispute Resolution (“ADR”) such as mediation or arbitration before going to Court, unless the matter is urgent or there is clearly no prospect of PDR bringing about a resolution.

What law applies

Where a dispute concerning property arises between parties who are or have been married to each other, or if it concerns children of parties who are or have been married, the Family Law Act 1975 (Cth) applies.

Where the dispute relates to children of parties who are not or have not been married to each other, or where it relates to property of a de facto relationship that ended on or after 1 December 2002, the Family Court Act 1997 (WA) applies.

Although different acts apply, in reality the Family Court Act 1997 (WA) mirrors the Family Law Act 1975 (Cth) in almost all areas, at times word for word, and the same principles apply.

In child support disputes the Commonwealth Child Support legislation enacted in 1989 applies, including those disputes relating to children whose parents are not or have not been married.

Issues of domestic violence can be dealt with under both the Family Law Act, the Family Court Act but are usually resolved under the Restraining Orders Act 1997 (WA): see further Family and Domestic Violence.

Disputes concerning property of parties to a de facto relationship that ended before 1 December 2002 are usually resolved using principles of trust and equity. See further De Facto Relationships that ended before 1 December 2002 or were of less than 2 years' duration.

Alternative Dispute Resolution

There are a number of methods of ADR. The main ones are Mediation and Arbitration, but it is possible to combine the two. Mediation can be used for both child welfare and property disputes. Arbitration can only be used for property disputes.

PDR now forms part of the compulsory Pre-Action Procedures, see Making An Application.

Mediation

Mediation is a formal settlement conference conducted on a “without prejudice“ basis. Many Courts now conduct compulsory settlement conferences which carry different names (conciliation, pre-trial, mediation). All these are essentially mediations as they involve the assistance of a third party to achieve a settlement agreed on by both parties.

The mediator is impartial and facilitates discussion and communication.

Arbitration

Under this option a binding award is made which can be registered in the Family Court. It can be reviewed only on a question of law. The procedure can be customised to the needs of the parties.

Mediation-Arbitration (MedArb)

Under this formula, the parties at first engage in mediation. If no resolution can be achieved, the mediator then acts as arbitrator and provides an award. Even though mediation is ordinarily conducted on a without prejudice basis, the parties have to agree in advance that conducting the mediation will not disqualify the mediator from then acting as arbitrator.

Arbitration-Mediation (ArbMed)

In this model the parties first engage in arbitration and the arbitrator immediately prepares an award in summary form. This is sealed in an envelope and the parties proceed to conduct a mediation with the arbitrator. If they reach agreement in the mediation, the award remains sealed; if not, the arbitrator publishes the award which is then binding on the parties. Detailed reasons for the award are given later.

There are other forms of Alternative Dispute Resolution - see designated section.

Courts

In Western Australia, the Family Court of Western Australia deals with all issues arising from the breakdown of marriages and de facto relationships under the Family Law Act 1975 (Cth) and the Family Court Act 1997 (WA), except for de facto relationships that ended before 1 December 2002.

Decisions before the final hearing are usually made by the Magistrates Court (150 Terrace Road, Perth), which forms part of the Family Court of Western Australia. The Magistrates of that Court are also Registrars of the Family Court of Western Australia.

In areas outside the Perth Metropolitan Area, applications can be made to the closest Magistrates Court, but eventually these matters are transferred to the Family Court of Western Australia.

Applications under the Restraining Orders Act 1997 (WA) may be made to the closest Magistrates Court including those in the Perth Metropolitan Area, but the Family Court of Western Australia and the Magistrates Court also have jurisdiction to make orders under that Act.

Disputes concerning property of a de facto relationship that ended before 1 December 2002 are dealt with by the Supreme Court of Western Australia.

In other States, the Federal Circuit Court also has jurisdiction in matters arising under the Family Law Act 1975 (Cth). This is not the case in Western Australia, where all these matters are dealt with by the Family Court of Western Australia.