The new de facto laws in practice

Adelaide lawyer Erin Smyth examines how smoothly same-sex couples have been taken up as de facto couples under the law.

It's been over a year since the South Australian State Government referred its powers regarding de facto relationships to the Commonwealth. The changes saw the increase in property rights of same sex and different sex de facto couples. To date, there has still not been a decision of the Full Court of the Family Court of Australia regarding a de facto property settlement matter.

There appear to be two reasons for this. One is the long waiting times and delay present in the judicial system currently. Also, matters that do end up in the Full Court require time to work their way through the system, final hearings, appeals and delivery of judgments.

The other is the introduction, application and process of the new de facto laws through the judicial system has been relatively smooth. There seems to have been a uniform acceptance that legal principles applied in financial matters upon a marriage breakdown are also applied in de facto property settlements. Thus lawyers are in familiar territory, which assists parties in reaching a resolution and therefore a settlement outside of court or early in the court process.

It appears proving the parties were actually in a de facto relationship has been the most contentious issue. Sometimes the party with the most to lose (i.e. higher superannuation entitlement and more likely to be ordered to pay maintenance by the court) attempts to deny a de facto relationship existed in order to protect their assets.

The Family Law Act states that a party is in a de facto relationship with another person if:

1.  they are not legally married to each other;
2.  they are not related; and
3.  they have a relationship as a couple living together on an genuine domestic basis.

The first two points above are relatively easy to satisfy. Most arguments thus far have rested upon point three. The phrase that has appeared to cause the most deliberation is that of ‘living together as a couple’.

What is living together? Do you have to live full-time with your partner, or can you merely spend one or three nights per week together? The case law to date is that you do not have to live together on a full-time basis, however you have to have lived together at some point to be considered de facto. The case law to date states you can live together for half time, or even less in some circumstances.

Another issue has been when are de facto relationships officially over? This is important as one party may try to argue the relationship ended prior to July 1, 2010, meaning the property settlement will be governed by the old SA laws and their ex-partner may lose significant property rights. This is extremely pertinent to couples who may separate but still live together under one roof.

So, can you just walk out of the home or simply move to another room without the decision to end the relationship being verbally communicated to your partner? There are two conflicting judgments on this. The first delivered in 2009 found the communication of separation is not mandatory in concluding a de facto relationship has broken down. According to this, you may simply be able to leave the property or commence sleeping in a different bedroom without expressly telling your partner it's over.

The second judgment delivered in 2010, however, applied must stricter criteria. In this matter the court declared that to separate, in a legal sense, there must be the development of the intention to separate, even if this is not mutual, and this must be communicated to the other party and then some action must take place, such as moving out of the home or moving to a separate bedroom.

Overall, however, it appears the introduction of the new de facto laws has taken place extremely smoothly with many parties and their lawyers adapting to the amendments well.

Erin Smyth is a lawyer at Camatta Lempens who specialises in Family Law, as well as same-sex and different-sex de facto matters.