13.3.4.4 Establishing a de facto relationship
In forming an opinion as to whether two people are living together in a de facto relationship, section 11A of the VEA (which also applies to MRCA relationships) requires a delegate to have regard to all the circumstances of the relationship, including the following factors:
1. the financial aspects of the relationship,
2. the nature of the household,
3. the social aspects of the relationship,
4. any sexual relationship between the people, and
5. the nature of the people’s commitment to each other.
The order in which the factors are set out in section 11A of the VEA does not imply an order of importance and does not place a limit on the factors that may be considered in a particular case.
(1) Financial indicators of a possible de facto relationship
The following list is intended as a guide only and is not an exhaustive list of the possible joint financial arrangements which may be taken into account:
- joint ownership of property and major assets,
- joint pooling of finances, shared accounts, credit cards, loans
- acting as guarantor for loans,
- legal obligations owed by one person in respect of the other person,
- shared responsibility for electricity, gas and telephone accounts,
- shared responsibility for everyday household expenses,
- nomination as beneficiaries of wills, trusts, insurance policies, compensation or superannuation
- claiming a person as a dependent for tax purposes
(2) the nature of the household
The following list is intended as a guide only and is not an exhaustive list of the possible domestic arrangements which may be taken into account when assessing the character of a relationship:
- joint responsibility for providing care or support of children, natural, step, fostered or adopted
- the living arrangements of the people, e.g. exclusive use of certain rooms
- the residence regarded as the people’s usual home,
- shared ownership of the home, or contribution towards maintenance costs, renovation or capital expenditure
- arrangements for paying the rent, mortgage and expenses,
- names in which the tenancy has been recorded,
- the basis on which responsibility for housework is distributed.
(3) Social aspects of the relationship
Consideration of the social aspects of a relationship are an important factor in forming an opinion about whether a de facto relationship exists including:
- whether the people hold themselves out as each other’s partner,
- the assessment of family, friends and regular associates of the people about the nature of their relationship,
- whether either or both of the people are already married to other people and may be reluctant to disclose the status of their current relationship for personal reasons, e.g. impact on children, negative responses by family and friends to the current relationship,
- whether either or both of the people are widowed and may be sensitive to being perceived negatively by family or friends,
- whether the people chose not to refer to each other as married or de facto for social, religious or cultural reasons.
(4) Sexual relationship
The presence of a sexual relationship does not by itself prove the existence of a de facto relationship; nor does its absence prove one does not exist. Where a sexual relationship exists, consideration is given to whether it is ongoing and exclusive (whether there are ongoing casual relationships with other partners), in addition to the degree of emotional support provided and other forms of interdependence which may exist.
(5) The nature of the people’s emotional commitment to each other
The level of commitment to each other is considered in terms of the emotional attachment between the two people and whether it is qualitatively different to the commitment of either party to anyone else. Factors indicating the two people’s level of dedication to one another include:
- the length of the relationship
- level of obligation or duty demonstrated to one another and/or each other’s families
- concern demonstrated for one another’s welfare and level of practical assistance provided in times of need
- emotional support provided, especially during times of crisis or illness
- the nature and level of companionship provided, level of disclosure of confidences
- the level of involvement in one another’s families and friends, level of closeness and familiarity
- whether the nature of the commitment has changed, and how
- whether the people consider that the relationship is likely to continue indefinitely, and
- whether the people see their relationship as a de facto relationship.
Other indicators of a possible de facto relationship may include:
- nomination of each other as next of kin for employment purposes, accessing rental accommodation, health care, education of children
- relationship status used for taxation, health, insurance, child care, welfare or other purposes
- history of changed addresses together, moving interstate together or living overseas together
- provision of care for one another’s parents or close relatives
Registered Relationship
To establish whether a person is a member of a same sex de facto relationship, the same factors are considered as for opposite sex relationships (see section 11A of the VEA, which also applies under the MRCA (s5 refers)). The one exception to this process is that some Australian jurisdictions now have legislation that enables same sex and opposite sex couples to register their partnership. A person who is in a relationship that has been registered under the Victorian Relationships Act 2008, Tasmanian Relationships Act 2003 or the ACT Civil Partnerships Act 2008 is considered to be the partner of the person they are registered with. Registration of a relationship under one of these laws is conclusive proof (in the same way that marriage is) that two people are partnered or members of a couple*.
* Under the VEA, provided that the person is not living separately and apart from the other person on a permanent basis, registration is conclusive proof of partnership.
If a person is in a registered relationship under a local register or an overseas register, this may be taken as evidence to contribute to the establishment of a registered relationship. However, registration in these contexts will not necessarily form conclusive proof of a partnered relationship.
Further information about de facto and registered relationships can be found in the MRCA Policy Manual.