Determining a De Facto Relationship | Social Security Guide
A de facto relationship is a relationship in which a couple lives together on a genuine domestic basis. This definition is the same across Queensland, New South. The one year de facto relationship requirement is a criterion that must be met by applicants for the following visas who claim to be in a de facto relationship. A de facto relationship is defined in Section 4AA of the Family Law Act However, your relationship is not a de facto relationship if you were legally married to one another or if you are related by family. The Family Court and the Federal Circuit Court deal with issues.
Others may find discussing their relationship with Centrelink staff confronting, due to fears regarding disclosure of sexual preference and or a same-sex relationship, stigmatisation or discrimination. Particular care should be taken in conducting de facto assessments for older people in same-sex relationships, and for other vulnerable groups, e.
On 8 Decemberthe Marriage Act was amended to redefine marriage as 'a union of 2 people' and introduced non-gendered language so that the requirements of the Act apply equally to all marriages. It also enabled same-sex marriages that have been, or will be, solemnised under the law of a foreign country to be recognised in Australia.
If the existence of a pre 1 July same-sex relationship is relevant for a claim for a benefit or payment payable for a period 1 July onwards, this relationship can be taken into account in the assessment of the claim.
However, this is limited to qualifying for benefits and payments, and rates payable from 1 July onwards. The existence of a same-sex relationship prior to 1 July cannot be the basis for backdating qualifications and rates of payment for a pre 1 July period, as the legislation gives legal effect to changed rates of payment from 1 July Exclusion 'Care' relationship - the definition for member of a couple relationships excludes a person who provides personal care and support to another person for payment or reward, on behalf of another person or a government, charitable or similar organisation.
It is Government policy to encourage people with a disability, or who are aged, to remain in their own home if support is available. Care relationships exist which involve people of all ages. In cases where a person is sharing with another person primarily for caring reasons and companionship and there is little evidence of other factors present discussed belowthe decision maker should not form the opinion that a de facto relationship exists.
Examples of a care relationship Example 1: Kathryn is 23 and has been living in share houses for about 4 years. She has shared with a variety of different people of both sexes, but her friend Richard has also lived in each share house with her.
Kathryn and Richard have been close friends since high school. Kathryn is being paid DSP as she suffers from severe clinical depression. Richard is studying and working part-time. He provides companionship and emotional support to Kathryn when she is severely depressed, takes her to medical appointments and checks to make sure that she takes her medication and is not in danger of harming herself.
What is a de facto relationship?
Kathryn and Richard have separate bedrooms and they have never had a sexual relationship with each other nor are they romantically interested in each other.
Finding - Although Kathryn and Richard's lives are intertwined in some ways due to their friendship and living in a share household, it could not be said that they are living in a de facto relationship as Richard is providing no more support than that provided by a caring friend regardless of their sex.
Oscar is a frail 70 year old age pensioner who has severe arthritis and osteoporosis. He shares his public housing unit with an old family friend Paulo, a 74 year old age pensioner. Both Oscar and Paulo have adult children who do not live in the local area.
They provide each other with care and companionship. They have separate bedrooms, no jointly owned assets or income and have separate wills. They share all expenses Paulo is suffering from the early stages of dementia and Oscar helps him manage his affairs and ensures that he takes his medication, showers daily etc.
Paulo is able to help assist Oscar if he suffers a fall, and helps Oscar by doing most of the housework, although Oscar is still able to do the cooking. They go shopping together and go out socially to the local club to play bingo and have a drink with friends. Friends and family know that they are not a couple. Finding - They are not living in a de facto relationship as they are only providing each other with support and are caring friends to one another.
- Family Court of Australia
- 188.8.131.52 Determining a De Facto Relationship
Frequently there may be an existence of some of the 5 factors, however, the decision should be made on the basis of other information such as why the arrangements are in place, e. Shirley had been married to Jack for 20 years when she moved out of the marital home because their relationship had completely broken down, though they remained friends. Five years later Jack was involved in a motor vehicle accident and he subsequently became a quadriplegic.
Following the accident he became very depressed and began drinking heavily.
What is a de facto relationship? » Smith and Partners Lawyers
Full-time paid carers cared for Jack initially. However, his alcoholism worsened and he would become quite angry, abusive and sexually disinhibited. The care organisation would no longer provide care for him, as it was not safe for the staff to attend. Shirley reluctantly agreed to move back into the marital home to care for Jack as she recently retired from work and could claim CP.
Shirley and Jack had never divorced and they still jointly own the home. Finding - Shirley and Jack could not be considered to be living in a de facto relationship. Shirley is providing the care and support of Jack not because she feels a commitment to their relationship, but due to the fact there was no-one else to care for him and admission to a nursing home was not appropriate due to his age. Evidence In deciding de facto cases, both parties may be interviewed and asked to provide additional information.
Consideration is then given to the range of information available to determine whether the parties are living in a de facto relationship. When deciding to interview a partner for additional information discretion must be exercised to ensure that the contact is appropriate.
Am I in a de-facto relationship?
For instance, there may be circumstances, such as where there are indications that family and domestic violence may be present, where it is not appropriate to interview a partner at all.
Centrelink records, external sources, e. It is not mandatory to obtain evidence from independent professionals to reach a decision that a person is not a member of a couple. A thorough investigation is to take place before a decision is made, and where possible all evidence is to be verified by external sources in writing. Unless evidence is available, the decision maker should not form an opinion that a person is a member of a couple. The presence of family and domestic violence may indicate that a person, whether or not they reside under the same roof as the other party, is not a member of a couple.
Moral judgements or suspicions are not relevant to the decision. Factors to consider for investigating de facto relationships The 5 factors to be considered in establishing whether a de facto relationship exists are: Making a determination that a person is a member of a couple requires that the indicators for a de facto relationship outweigh the indicators that the person is not in a de facto relationship.
All 5 factors must be considered. No single factor should be seen as conclusive and not all factors need to be present. For instance, the presence or absence of a sexual relationship is considered but does not, by itself, indicate whether or not a person is a member of a couple.
Different groups in society have different views about what constitutes a de facto relationship. Each case must be considered on its own merits, giving consideration to cultural background including gay, lesbian, bisexual and transgender cultural issues, ethnicity and religious beliefs when making a determination.
Financial aspects of the relationship The degree of financial interdependence, including whether arrangements for paying household expenses such as electricity, water, food or telephone are indicative of one person providing financial support for the other. Important indicators to consider: Whether both names are listed on tenancy applications, lease agreements, or mortgage applications. Whether one or both parties are providing financial support to the other, directly or indirectly, e.
A registered relationship or civil union may also create rights for property division, even though you may not have lived together for two years. Breakdown of a de facto relationship Most de facto relationships end amicably. Sometimes, however there are dispute regarding the division of property or children.
Upon the breakdown of a de facto relationship, there are three ways to sort out how to divide property: By agreement without court involvement; Through an agreement formalised by the court through an application for Consent Orders ; or By applying to the court for orders. The courts can make an order for the division of any property that you own together or separately.
It does not matter whether the property was owned jointly or individually. When determining a property settlement, the court evaluates the types of contributions — financial and non-financial — made by either person, as well as their future needs. This means your family law matters will be determined in the same manner as for a married couple getting divorced. Before you can make an application to the courts you need to ensure that you meet the definition of de facto.