NSW Defacto: 2 Years living together - but what defines living together?

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JamesD1984

Active Member
6 February 2018
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Defacto: 2 Years living together - but what defines living together?

Context

My girlfriend stays with me a few nights a week, she does not have her own key to my place.

At what point does this start counting towards 2 years of living together that could trigger the defacto status?
 

Scruff

Well-Known Member
25 July 2018
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Where does she live the rest of the time? Does she have her own place?
 

Scruff

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25 July 2018
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Also, does anyone else live with you and if so, do any of them have their own key?
 

Atticus

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6 February 2019
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Also... Are we talking about in the context of family law or social security law, because there is a big difference
 

Atticus

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6 February 2019
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I'm sorry, I'm not sure. Wouldn't they have the same definition of defacto?

There is a much stricter definition in social security law that can be used to justify a reduction in some payments...

Assuming you are asking about family law because that's the subject of this forum, the following link to section 4AA of the family law act defines what is to be considered as constituting a de facto relationship

FAMILY LAW ACT 1975 - SECT 4AA De facto relationships

You are correct in mentioning the 2 year time frame, however that doe's not necessarily apply if you were to have a child together or pool your finances into the purchase of a significant asset like a house for example. In other words, if you were only living together part of the time but were to have a child or purchase property, a court may find that a de facto relationship exists.... & in those circumstances that would be the case even if it's less than the 2 years...

Sounds complicated.... Look, basically as long as you don't have a child or purchase property together, there is nothing to take you to court for anyway. Not in a situation like yours... However, If you were actually living together full time in a de facto for 2 years or more, then on separation, a property settlement could be filed
 

Atticus

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6 February 2019
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Should also add that in the context of family law., the fractured nights you spend together under one roof are not cumulative
 

Scruff

Well-Known Member
25 July 2018
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Okay - Regardless of which law we're talking about, one common element that is required to be classified as a defacto is that you must be "living together as a couple". So the first thing that needs to be established is whether or not you are actually living together. Only then can the question of a defacto relationship be looked at.

One way to determine if you are living together or not, is to establish where her "primary residence" is. So lets's go through a few things.

1. She lives with relatives when not at your place, so we now know that she doesn't have her own place. That means no ownership or rental agreement in her name. That's unfortunate, but certainly not a deal breaker.

2. Since there's no residence in her name, you need to look at what address does she use for "everyday living". So you look at the important things like driver's licence, car rego, mobile phone accounts, bank accounts, etc. What address is she using for all of those things? If she is using an address other than yours for everyday living, then this provides a very strong argument that your place is not her primary residence.

3. She doesn't have a key. Given that she is not living with you full time, not having a key means that when she is there, she is a guest, not an occupant. The simple fact is that she can't come and go as she pleases - she can only "visit" when you are home and you grant her access.

4. Another thing to look at - are you renting? If so, is your name the only one on the tenacy agreement and is the number of additional occupants zero? If so, then the tenancy agreement also indicates that she doesn't live there.

5. The reason I asked about other occupants having a key is because if anyone else did live with you and they all had their own key, then this would provide you with the argument that you only give keys to people who are living there - you didn't give her a key because she doesn't live there.

A lot of things need to be considered in order to determine if your place is her primary residence. What address she uses everyday is a big part of that, so is the fact that she's not there full time - and so is the fact that you have never given her a key.

If you can get enough evidence together to show that you are not living together, then you can't be in a defacto relationship.
 
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