Multiple De Facto Relationships

In Australia, a de facto relationship is a legally recognised union between two people (of any sex) who are not related or married, yet who live together on a genuine domestic basis. A de facto couple have most of the same rights and responsibilities as a married couple under Australian law. However, unlike with a marriage, one person can be involved in multiple de facto relationships at the same time. This article defines this legal institution and looks at the implications and challenges involved in multiple de facto relationships.

Legal framework

There are implications for de facto couples at both the federal level, with the Family Law Act 1975, and at the state and territory level. These laws define a de facto relationship according to the following criteria:

• The duration of the relationship, including any periods of separation
• The degree of mutual commitment to each other and a shared life
• Whether there is a sexual relationship
• The shared living arrangements
• Financial interdependence
• The acquisition, ownership and use of real property
• The public perception of the relationship, and
• The care and support of children, if applicable.

While the law typically requires a de facto couple to have been together for at least two years, there are exceptional circumstances (such as where the couple share a child) that can qualify a couple as de facto after a shorter period. No single factor is determinative, and the courts assess the overall circumstances of the relationship when deciding whether there is a de facto relationship.

Multiple de facto relationships

Australian courts have acknowledged that it is possible for someone to be in more than one de facto relationship at the same time. While it is illegal for someone to be married to two people at the same time, there is nothing to stop someone maintaining domestic partnerships with multiple people.

In fact, prior to 2018, even government services recognised that individuals could be in multiple, equally valid de facto relationships at one time. More recently, the Australian government has changed this policy, because of the perception that it was endorsing polygamy. The Department of Social Services policy guide was updated to clarify that the Department “does not recognise the existence of multiple relationships”. In light of the policy change, when someone claims they are in more than one relationship, the relationship with the greater legal weight (marriage or registered relationship) will be recognised for social security purposes. 

Proving de facto relationship

In Jonah v White [2012], the Family Court examined whether the parties were in a de facto relationship even though the respondent was married to and maintaining a household with their spouse at the same time. The parties had a secret 17-year intimate relationship, usually spending every alternate weekend together and even travelling overseas on holiday. While Justice Murphy ultimately rejected the applicant’s claim that they were in a de facto relationship, he clarified that it is possible for someone to be in a de facto relationship while having legal spousal obligations to another person, providing both relationships abide by the criteria set out in family law. In particular, he opined that the key to defining de facto relationships is “coupledom”, where the two parties “have so merged their lives” that they are effectively living together. The Appeal Court concurred that a de facto relationship is defined by the nature and quality of the relationship, rather than by the time spent together.

Implications in family law

The existence of simultaneous partnerships can seriously complicate legal proceedings, especially when it comes to property division, spousal maintenance and other family law matters. The Family Court can face difficulties when adjudicating disputes involving multiple de facto relationships because of the subjective definition of “genuine domestic relationship”. For instance, a person might cohabitate with one partner while financially supporting another in a separate residence. In those circumstances, it would be necessary to provide extensive evidence such as testimonies, joint financial records, and correspondence to determine the extent of “coupledom” between each person. Multiple de facto relationships can also make it difficult to establish the asset pool. For instance, an individual with several partners might have pooled resources with both individuals, complicating the identification of ownership.

Implications in succession law

Under Australian succession laws, both married and de facto partners have legal claims to the estate of their spouses. If a deceased had multiple de facto partners when they passed away, or one married partner and a de facto partner, disputes can arise over the distribution of the estate, especially if the estate is intestate. In those circumstances, the courts must decide that both partners have a claim to the estate. In that case, the courts must determine:

• Which portion of the shared asset pool belongs to which partner
• Whether each party’s contribution to the relationship was equal or disproportionate
• How to proceed if one party was unaware of the existence of the other relationship

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