In determining whether two persons had a relationship as a couple living together on a genuine domestic basis, section 22C of the AIA requires all the circumstances of the relationship to be taken into account, including any or all of the following circumstances:
- the duration of the relationship;
- the nature and extent of the common residence;
- whether a sexual relationship exists;
- the degree of financial dependence or interdependence and any arrangements for financial support between them;
- the ownership, use and acquisition of their property;
- the degree of mutual commitment to a shared life;
- the care and support of children;
- the reputation and public aspects of the relationship.
Importantly also, that section of the AIA specifies that no particular finding in relation to any of the above-listed circumstances is necessary in determining whether two persons meet the criteria for a de facto relationship. Thus a delegate cannot find that two persons are not in a de facto relationship on the basis of a particular circumstance.
Furthermore the applicant's assertions about some of the above factors would, of their nature, be hard to confirm. The judgement is up to the delegate given the known facts of the case. Where delegates are required to make such a decision, the basis of this decision should be documented by commenting on each of the above.
Deeming persons to be living together
Section 22C of the AIA also provides that persons are to be taken to be living together on a genuine domestic basis if they are not in fact living together on a genuine domestic basis only because of:
- a temporary absence from each other (this criterion can be particularly relevant to defence couples where one of the partners is posted away for an extended period); or
- illness or infirmity of either or both of them (such as when one of the partners requires long-term institutional care).
Note that this paragraph of section 22C of the AIA might appear to have the same effect as subsection 4(4) of the SRCA in so far as it relates to the deceased's incapacity. However, 22C(4)(b)of the AIA is deeming a person to be in a de facto relationship where the only reason they are not otherwise meeting the criteria for 'de facto relationship' is the illness or infirmity of themselves or their partner. It does NOT deem the person to be wholly dependent on the deceased. The criteria in subsection 4(4) must be met for that deeming to take place (see 1.13)
.