We own property but don’t live together. Are we de facto?

Are you and your partner de facto if you haven’t lived together? What happens if you separate, but together you own a property you have never lived in?

Buying property together before living together is a practical move for some. Couples can find themselves in a financial position to buy, but not live, in that property at the time of purchase. This could be due to the increased financial burden of home ownership, the property being purchased solely as an investment or many other reasons.

On July 1, 2010, new laws commenced in South Australia that give people who were in de facto relationships the same rights, with respect to property, as those in married relationships. Whether a couple lived together is just one of the factors considered by the Court to determine de facto status. The Court uses the following criteria to determine whether a party may have a claim:

1. The parties must be living together for a period of at least two years; or

2. There is a child of a de facto relationship; or

3. One of the parties to the relationship has made substantial financial or non-financial contributions to their property, or as a homemaker or parent, and a serious injustice to that partner would result if an order was not made for adjustment of property settlement; or

4. The relationship is or was registered under a prescribed law of a state or territory.

In short, a couple do not have to be living under the same roof to be considered de facto, particularly where one or both people made substantial contributions to acquiring that property, or if there is a child to the relationship.

There is a clear set of rules that define the de facto status of a relationship.

Furthermore, couples who frequently separate then reunite may find themselves living apart, despite jointly owning property. The Court needs to be satisfied that one of you made significant contributions to acquiring the property, and that a serious injustice would be caused to that person if they were not considered to be in a de facto relationship and, therefore, unable to make an application for an adjustment of property settlement.

Financial contributions are those directly towards property, such as someone putting their income towards assets. Non-financial contributions may be by way of renovating or maintaining assets, homemaker duties and caring for any children.

Each relationship’s unique circumstances determine whether a couple is de facto. The Family Law Act 1975 specifies the following factors:

1. The duration of their relationship;

2. The nature and extent of their common residence;

3. Whether a sexual relationship exists;

4. The degree of financial dependence or interdependence, and any arrangements for financial support, between them;

5. The ownership, use and acquisition of their property;

6. Their degree of mutual commitment to a shared life;

7. Whether the relationship has been registered in a state or territory with laws for the registration of relationships;

8. The care and support of children; and

9. The reputation and public aspects of their relationship.

If you are unclear on your relationship status, or you need advice before entering into a de facto relationship to protect your assets, our Family Law team can help.