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Definition for the term "defacto" needed

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What actually constitutes a defacto relationship?  Example: 4 days living with friend who also has your son living there for three days a week, and the other 4 days the son resides elsewhere because of his work commitments. Is this a defacto relationship?

Last edit: by OneRingRules

Where do I find a reply to defacto question?
There are many documents in the 'web guide' section of this site Technically there is no single defintion - it depends on circumstances and different Acts with diferent Government departments (both State and Federal) You need to be more specific are you refering to Family Law?. Social Services, the ATO etc?



A de facto relationship is the term normally used to describe the relationship between a man and woman who live together as husband and wife although they are not legally married. In some circumstances the term can include same sex couples. There is no one legal definition of a de facto relationship as there are different requirements for different legal purposes.

Disputes concerning children of de facto relationships are decided by the Family Court (see Children below).

Social Security
Centrelink needs to determine whether or not a couple are in a de facto relationship to establish ·           entitlement to pension or benefit eg. wife's pension or widow's pension; or · lack of entitlement to pension or benefit eg. parenting payment (single), unemployment benefits. Centrelink looks at the relationship as a whole in order to establish whether it is a de facto relationship, and there is no single test.

Children
There is no legal difference between a de facto relationship and a marriage concerning parents' responsibilities for their children.

Property
De facto couples are able to own property jointly




Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 
Guest said
What actually constitutes a defacto relationship?
Firstly the Family Law Act defines Defacto in Part 1 section 4 as de facto relationship means the relationship between a man and a woman who live with each other as spouses on a genuine domestic basis although not legally married to each other.

What does this mean in real terms? It means living with a partner (in some cases same sex) as if they were a married couple but not actually being married. Sleeping and or cohabiation in the same bed on more than a casual dating arrangement. The definition is loose because the word married is not used. However it is usually taken to mean "living with" a partner or "hangs out all the time with" or has a "live in relationship" and where they generally share the same bedroom on more than an aquaintence arrangement. And this is different to "Flats with" where they live in seperate bedrooms, perhaps except for the occasional indiscretion where the flat mates are "Very" good friends.

Guest said
Example: 4 days living with friend who also has your son living there for three days a week, and the other 4 days the son resides elsewhere because of his work commitments. Is this a defacto relationship?
I would definitely say the relationship you describe is a defacto relationship. If the work commitment was not there where would the son reside?

The Child Support Agency does not care about Defacto or Married arrangements. When there are children involved it concerns itself only with the collection of funds from the non resident parent (usually dad) to pay funds to the resident parent (usually Mum) as prescribed under legislation.

The Family court and the Federal Magistrates court usually only get involved in matters around children or property disputes in relation to married or defacto arrangements (Where the parties cannot mediate a settlement) although the family court does get involved in a wide range of more complex issues like paternity disputes and artificial insemination issues where say a doner wants contact arrangements.  

Am not sure if you will get this response because you have not posted with a site user name and therefore you will not receive a site email alert advising of the response.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
You are still not stating why you are asking the question.
Is this a Family Law issue, Centrelink, Child Support or what?

Executive Member of SRL-Resources, the Family Law People on this site (look for the Avatars) Be mindful what you post in public areas. 
I am quite confused about who is residing with who because there is a discussion "your son living there for three days a week, and the other 4 days the son resides elsewhere"

The son is not relevant to the discussion unless he is the one having the relationship. The question is "how many days is the father living in this arrangement" not how many days is the son staying with the father. The women if carrying out the duties of a "step Mum" is really irrelevant to the discussion. The discussion is only around the man and the woman who are co-habitating in some arrangement that is unclear.

Site Director

De Facto a definitive legal view

Some additional information and definition:

De facto relationship break down is now a fundamental part of most family law practices.

It is now estimated that 28% of men and 23% of women will never marry in their lifetime. In 1999 it was estimated (based on marriage and population statistics) that 9.4% of all couples were living in a de facto relationships (Australian Bureau of Statistics). The traditional nuclear family was the only household type to decrease in 2000 according to the KPMG Consulting, Population Growth Report 2000 (11th ed). (Would be interesting to get the latest census figures) 
The legal concept of "marriage"The distinction between a legal concept of marriage, and relationships which are in actual fact marriages (de facto), persists. The meaning of the word ``marriage'' as contained in s 51(xxi) of the Constitution provides the basis for the demarcation of legislative power between the states and the Commonwealth Parliament, the States have over time enacted their own legislation dealing with de facto relationships. While the states and territories have referred power to the Commonwealth with respect to children's matters (with the exception of Western Australia), this has yet to come in to effect with respect to property matters. Although the statutes vary, the basic features are jurisdictional definitions requiring a period of cohabitation and evidence of financial or non-financial contributions by the parties to the relationship. The state based legislation is notable for its broad definition of a de facto relationship. For example a number of states have amended legislation to include same-sex and domestic relationships, whereas under the Family Law Act 1975 (Cth) marriage is described as ``the union of a man and a woman to the exclusion of all others voluntarily entered into for life'' (s 43(a)).

There has been much discussion in recent years amongst the states about referring their powers in relation to financial matters for de facto parties to the Commonwealth. Most states have passed legislation to that effect and it is now a matter of waiting to see if the Commonwealth takes up the referral power.

De facto relationshipsWhile the term 'de facto relationship' has wide currency and is defined in a number of state and federal Acts (Social Security Act 1991 (Cth)) the precise definition varies from from state to state. The traditional definition of a de facto relationship as a relationship between a man and a woman who are not legally married but live together on a genuine domestic basis as husband and wife is retained by South Australia. However the broader definition of de facto relationships between two people irrespective of gender has been adopted in New South Wales, Victoria, Queensland, Tasmania, the Australian Capital Territory, the Northern Territory and Western Australia. A number of states also include an even broader definition of domestic relationships which encompasses close personal relationships that are characterised by domestic support and personal care.

The question of what comprises a de facto relationship was considered by the NSW Court of Appeal in Light v Anderson & Ors (1992). In that case the court referred with approval to the decision of Kearney J in Simonis v Perpetual Trustee Co Limited (1987) 21 NSWLR 677 where Kearney J reviewed the authorities before stating at p 685:

"I consider that the expression under consideration constitutes a single composite expression of a comprehensive notion or concept, and therefore has to be approached by considering the expression as a whole and not in several parts.

This approach, as adopted by Powell J was also the approach preferred by the Administrative Appeals Tribunal in Waterford's case. I consider that the factors referred to by Powell J, while not being regarded as the complete test, serve the purpose adequately in the present case…''

The factors indicated by Powell J are as follows:

1. the duration of the relationship


2. the nature and extent of the common residence


3. whether or not a sexual relationship existed


4. the degree of financial interdependence, and any arrangements for support between the parties


5. the ownership, use and acquisition of property


6. the procreation of children


7. the care and support of children


8. the performance of household duties


9. the degree of mutual commitment and mutual support, and


10. reputation and "public'' aspects of the relationship


These factors are the indicia of a de facto relationship now set out in s 4 of the Property (Relationships) Act 1984.

Cohabitation plus childrenWhere a child is born to a de facto couple this is sometimes viewed as sufficient evidence of permanency to attach a legal status to the couple's relationship. Thus, the following rights and obligations have been attached to such arrangements:

- maintenance obligations – Property (Relationships) Act 1984(NSW), s 17(2)


- rights to education allowance – in Australia, the repealed provisions in reg 3 of Statutory Rules 1974, No 179 under the Student Assistance Act 1973 (Cth)

- rights upon intestacy – eg Administration and Probate Act 1919 (SA) and (NSW), as well as a number of the other state and territory Acts.

- property interests and maintenance – Property (Relationships) Act 1984 (NSW) s 17; Domestic Relationships Act 1994 (ACT), s 12(2).

Same sex relationshipsSame sex relationships are now recognised as de facto or domestic relationships in all states except for South Australia. The statutory definition in South Australia requires the relationship to be between a man and woman, who although not married, live together as husband and wife.

ConclusionThe area of de facto relationships law has experienced significant change in recent years. Each state and territory has now legislated to cover property adjustments between de facto couples. In New South Wales, Victoria, Queensland, Tasmania, the Australian Capital Territory, and the Northern Territory those Acts have been also been amended to include same-sex and (in some cases) personal relationships. In Western Australia de facto's have the same rights as people under the Family Court Act 1997 (WA), which mirrors the Family Law Act 1975 (Cth) and can bring applications in the Family Court of Western Australia. As a result the property of people in de facto relationships receives more protection than it ever has.

In late 2002 the State Attorney's General reached an agreement in principle to refer power to the Commonwealth in respect of same-sex and heterosexual de facto partners. A number of states have now enacted legislation putting this agreement into effect. At this stage the Commonwealth has not introduced legislation to give effect to the referral, however, if they do so, it is widely expected that they will exclude same-sex partners from the Commonwealth jurisdiction, which probably means access to the Family Court of Australia.


Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
This press release was issued by the Human Rights & Equal Opportunity Commission on the 21 of June.

Changing the definitions describing de facto relationships in relevant federal laws could help end daily discrimination suffered by more than 20,000 same-sex couples in Australia, according to a report by the Human Rights and Equal Opportunity Commission (HREOC), tabled in Federal Parliament today.

The Same-Sex: Same Entitlements Report, being officially launched in Sydney tomorrow by Australia's Human Rights Commissioner Graeme Innes AM, found that 58 federal laws denied same-sex couples and their children basic financial and work-related entitlements available to opposite-sex couples and their children.

"As one man told us during our Inquiry - same-sex couples are first class tax-payers but second class citizens - and we have certainly found this to be true," Mr Innes said.

"This discrimination is completely unfair. There are 58 federal laws breaching the most fundamental of human rights principles - non-discrimination, equality before the law and the best interests of the child."

Mr Innes pointed out that same-sex couples often pay more tax than opposite-sex couples because of discrimination in tax law, yet they cannot expect the same entitlements in employment, workers' compensation, veterans' entitlements, health care subsidies, family law, superannuation, aged care and immigration law.

"Simple amendments to the definitions in a raft of federal laws would end this discrimination," Mr Innes said.

President of HREOC, John von Doussa, who also led the Inquiry, said the discriminatory laws also have a negative impact on children.

"The Inquiry found that the best interests of children would be better protected if federal, state and territory laws changed to recognise the relationship between a child and both parents in a same-sex couple," Mr von Doussa said.

The Same-Sex: Same Entitlementsreport is based on HREOC's 2006 National Inquiry into discrimination against people in same-sex relationships in the area of financial and work-related entitlements. The Inquiry held public hearings and community forums around Australia and received 680 submissions covering a range of topics, many of which described first-hand the impact of discriminatory laws on same-sex couples and their children.

The final report is available online at www.humanrights.gov.au/human_rights/samesex/report/

Last edit: by Admin

DeFacto could be moving to same status as Defacto and Married opposite sex couples

We need to be very mindfull that there is one thing to have equal FINANCIAL responsibility in law but it is another to say well you no longer need a Dad…

The SPCA is clear in that it is a fundemental right of every child to have a mother and a father.

I know our friends in the Fatherhood Foundation have the same and similar views and I can quote from a recent email on this subject
Anything less than this is an abrogation of our childrens most fundamental right. Anything less than this is also the beginning of the end in more ways than one.

It is a fundamental denial of gender or even the point of gender which has been used to discriminate against fathers for decades. Men who needs men???? Canada is now paying the price for this crazy logic. Our children pay the price when we dont stand for the truth.

The statement "best interests of the child" are often used to muddy the waters on this issue.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
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