36.5.4 De-facto spouses

In deciding whether a bone fide domestic relationship exists, it is necessary to consider all facets of the inter-personal relationship between the parties. It is inappropriate to rely on any one fact as determinative, and it is important to recognise that there is no absolute standard by which a marriage can be described.

The courts and the Administrative Appeals Tribunal have often pointed to the relevance of the following factors in assessing a de facto relationship:

(i)the relationship having a quality of permanence

(ii)the living arrangements and sexual activity of the parties having the quality of exclusiveness

(iii)the pooling of resources

(iv)the sharing of expenses

(v)the parties holding themselves out as married

(vi)the parties having a subjective belief that their relationship is like one of husband and wife

(vii)the parties being joint parents of a child

(viii)the parties having a sexual relationship

(ix)the parties indulging in a joint social life

(x)one party having a legal right to enforce obligations in respect of the other.

The subjective views of the parties as to the nature of the relationship are not determinative, an objective view of the circumstances must also be taken. Note however, the opinion of Fitzgerald J in the Federal Court:

It seems futile to deny that subjective views as to what are involved as basic attributes of the marriage relationship will intrude into the assessment called for. However, it is in my view important that the departmental officers or tribunals charged with the task at least take into account what is the norm for the peer group of the applicant. Only in this way can the legislation be fairly and justly accommodated to a multi-racial and otherwise diverse society.

In the following circumstances, for reasons of public policy, the existence of a de-facto marriage must be rejected:

• either party is under the age of 16 years
• the parties are within a prohibited (incestuous) relationship for the purposes of S23B of the Marriage Act 1961.