De facto Relationship

Registered relationship

A person who is in a prescribed registered relationship with another person (their partner) and is not living separately and apart from their partner on a permanent basis is considered to be a member of a couple.  It is not necessary to apply the Section 11A factors in these cases. If the relationship is not of a kind that is prescribed, the delegate may still consider the registration of a relationship in Australia or overseas in the context of applying section 11A.

Note: Local councils in Melbourne, Yarra and Sydney each have their own relationship registers, but council-based relationship registers are not prescribed for the purposes of the Acts Interpretation Act 1901.

Forming an opinion on a de facto relationship

In forming an opinion as to whether two people are living together in a de facto relationship, section 11A VEA requires a delegate to have regard to all the circumstances of the relationship, including the following factors:

• the financial aspects of the relationship,
• the nature of the household,
• the social aspects of the relationship,
• any sexual relationship between the people, and
• the nature of the people's commitment to each other.

The order in which the factors are set out in section 11A 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.

Formalising an opinion that a de facto relationship exists

The delegate of the Repatriation Commission, having considered all aspects of a relationship, must consciously form an opinion that de facto relationship does or does not exist. The decision maker must ensure that as far as possible, the opinion is formed only after a complete appraisal of the relationship.

Weighing up the full circumstances of a relationship

The combination of all aspects of the relationship, its nature, the history, the personal and financial circumstances of each person, expectations for the future, whether children are in the relationship, are assessed in arriving at a decision to consider two people as living in a de facto relationship. Each case must be determined on its own merits, giving consideration to cultural background (including gay, lesbian, bisexual and transsexual culture), ethnicity and religious beliefs when making a determination.

Claimant does not agree with the decision of the delegate

A pensioner, claimant or applicant who does agree with a decision of a delegate that the person is or is not living in a de facto relationship has the right to appeal such a decision. The person is required to demonstrate, having taken all the factors into account, how the relationship is:     

• substantially different from that of a married couple, if appealing a delegate's decision that a de facto relationship exists,
• not substantially different from that of a married couple, if appealing a delegate's decision that a de facto relationship does not exist.

Absence by one member of a couple

Consideration is given to whether any absence by one person is of a temporary or a permanent/ indefinite nature when deciding whether a de facto relationship continues to exist. If the home remains the home of the absent person, the person is still considered to be a member of a couple.    

Absence from home due to employment

If a member of a couple is absent from home frequently only because of the nature of their employment, eg interstate truck driver or member of the defence forces, then the person is still considered to be living in a de facto relationship.     

Members of a couple living in separate residences

A person who is considered to be living in a de facto relationship will usually be living under the same roof as the other member. Generally, when two separate residences are maintained, there would rarely be sufficient indicators of the presence of a de facto relationship, excepting an illness separated couple or respite care couple. There may be instances where separate residences are maintained and the two people still consider themselves to be a couple. For example:    

• separate units in a retirement village
• one of the partners is caring for a parent or relative in that person's own home.