The nature of family law work over the last two decades has been slowly but steadily changing, as parties in de facto relationships continue to rise in numbers, while the numbers of formal marriages continue to fall or have plateaued. Since the 1970’s, there has been a steady fall in the number of “crude” marriages, (that is, the number of marriages registered in a calendar year per 1,000 population), from 9 per thousand, to a steady rate of about 5.5 per thousand in the early 2000’s.
By comparison, the number of people in de facto relationships in the early 2000s rose by some 25%. Approximately 1,200,000 Australians lived in a recognised de facto relationship in 2006 representing some 15% of all relationships and presumably that number has continued to rise over the last 10 years, both as a proportion of all relationships and a raw increase in numbers as the population continues to increase.
Later statistics from 2011 also include 33,713 same-sex couples into the mix of relationships that are included in our family law world. Unsurprisingly, since the transfer of jurisdiction from the State Courts to the Family/Federal Circuit Courts in 2009, the “de facto property” jurisdiction of those Courts has also continued to expand and absorb the time and resources of those Courts.
Evolving Legal Framework
This shift was grounded in earlier law reform efforts, beginning with the 1983 NSW Law Reform Commission report, which recognised the need to formally acknowledge the rights and obligations of those in de facto relationships. The resulting legislative changes across states—culminating in the referral of powers to the Commonwealth in 2009—solidified the inclusion of de facto couples (including same-sex couples) within the jurisdiction of the Family Law Act. Section 4AA of that Act now provides the core definition of what constitutes a de facto relationship.
The definition deliberately avoids rigid constraints, instead outlining a set of circumstances that courts may consider, such as duration of the relationship, financial interdependence, and public perception. Notably, the courts do not require all these factors to be present, and each case is assessed on its unique facts.
Why Classification Matters
As Justice Murphy noted in Jonah & White [2011] FamCA 221, establishing the existence of a de facto relationship is not merely semantic—it creates the gateway for access to legal remedies such as property settlements and maintenance orders. This determination can also significantly affect entitlements under superannuation law, intestacy rules, tax law, and estate litigation.
Given this complexity, courts are often asked to make declarations about whether a de facto relationship ever existed. These declarations, permitted under section 90RD of the Family Law Act, are crucial, especially when preliminary threshold issues need resolution before substantive family law claims can proceed.
Conclusion: Navigating the “Grey Area”
Unlike marriage, which has formal entry and exit points, de facto relationships are inherently more fluid and can be harder to define with precision. While the law provides a framework, it ultimately relies on facts—shared homes, financial ties, emotional commitment, and public acknowledgment. Legal practitioners must therefore help clients gather and present evidence that maps to the indicia in section 4AA, while also understanding that no single element is determinative.
If you’d like to dive deeper into this complex but important topic, the full paper Determining De Facto Relationships: Finding Certainty in Murky Waters by Nigel Nicholls and Cathie Blanchfield provides a detailed and case-driven analysis of the evolving legal landscape surrounding de facto matters.
Need clarity on your own situation or a potential de facto claim? Reach out to the experienced team at Blanchfield Nicholls Family Lawyers to get expert advice tailored to your unique circumstances. Contact us online or call direct on (02) 9994 0130.