2.2.5.10 Determining a De Facto Relationship

Summary

This topic applies when determining if a person is in a de facto relationship with another person, who is over the age of consent (applicable to the relevant state or territory) are committed to each other on a permanent or indefinite basis, are not in a prohibited relationship (subsection 4(12), subsection 4(13)) and:

  • to whom they are not married,
  • with whom they are not in a registered relationship (whether of the same sex or a different sex).

Note: For determining if a person is in a de facto relationship in situations where they have separated and remain living under one roof please refer to 2.2.5.30.

Act reference: SSAct section 4(12) to section 4(13) Prohibited relationship

Definition of a member of a couple

A person is a member of a couple under the SSAct if they have a relationship with another person as their partner, where both people are over the age of consent (applicable to the relevant state or territory), are committed to each other on a permanent or indefinite basis, are not in a prohibited relationship (subsections 4(12) and 4(13)), and are either:

  • legally married, or
  • in a registered relationship (2.2.5.13), or
  • in a de facto relationship.

Indicators of a member of a couple relationship are set out in SSAct section 4(3) and the 5 factors listed in the SSAct are described below.

Act reference: SSAct section 4(12) to section 4(13) Prohibited relationship

Recognition of same-sex relationships

It is important to note that same-sex de facto relationships were not recognised under social security and family assistance law prior to 1 July 2009. Recognition of same-sex relationships is a significant social change. Many people in gay or lesbian relationships will be keen to declare their relationship to Centrelink. Others may find discussing their relationship with Centrelink staff confronting, due to fears regarding disclosure of sexual preference and or a same-sex relationship, stigmatisation or discrimination. Particular care should be taken in conducting de facto assessments for older people in same-sex relationships, and for other vulnerable groups, e.g. people from diverse cultural and linguistic backgrounds and young people who have been assessed to be independent on 'unreasonable to live at home' grounds.

Note: On 8 December 2017, the Marriage Act 1961 was amended to redefine marriage as 'a union of 2 people' and introduced non-gendered language so that the requirements of the Act apply equally to all marriages. It also enabled same-sex marriages that have been, or will be, solemnised under the law of a foreign country to be recognised in Australia.

Note: If the existence of a pre 1 July 2009 same-sex relationship is relevant for a claim for a benefit or payment payable for a period 1 July 2009 onwards, this relationship can be taken into account in the assessment of the claim. However, this is limited to qualifying for benefits and payments, and rates payable from 1 July 2009 onwards. The existence of a same-sex relationship prior to 1 July 2009 cannot be the basis for backdating qualifications and rates of payment for a pre 1 July 2009 period, as the legislation gives legal effect to changed rates of payment from 1 July 2009. This may be relevant to YA, WA, bereavement payments, BVA and Age.

Exclusion

'Care' relationship - the definition for member of a couple relationships excludes a person who provides personal care and support to another person for payment or reward, on behalf of another person or a government, charitable or similar organisation. It is Government policy to encourage people with a disability, or who are aged, to remain in their own home if support is available. Care relationships exist which involve people of all ages. In cases where a person is sharing with another person primarily for caring reasons and companionship and there is little evidence of other factors present (discussed below), the decision maker should not form the opinion that a de facto relationship exists.

Examples of a care relationship

Example 1: Kathryn is 23 and has been living in share houses for about 4 years. She has shared with a variety of different people of both sexes, but her friend Richard has also lived in each share house with her. Kathryn and Richard have been close friends since high school. Kathryn is being paid DSP as she suffers from severe clinical depression. Richard is studying and working part-time. He provides companionship and emotional support to Kathryn when she is severely depressed, takes her to medical appointments and checks to make sure that she takes her medication and is not in danger of harming herself. Kathryn and Richard have separate bedrooms and they have never had a sexual relationship with each other nor are they romantically interested in each other.

Finding - Although Kathryn and Richard's lives are intertwined in some ways due to their friendship and living in a share household, it could not be said that they are living in a de facto relationship as Richard is providing no more support than that provided by a caring friend regardless of their sex.

Example 2: Oscar is a frail 70 year old age pensioner who has severe arthritis and osteoporosis. He shares his public housing unit with an old family friend Paulo, a 74 year old age pensioner. Both Oscar and Paulo have adult children who do not live in the local area. They provide each other with care and companionship. They have separate bedrooms, no jointly owned assets or income and have separate wills. They share all expenses 50:50. Paulo is suffering from the early stages of dementia and Oscar helps him manage his affairs and ensures that he takes his medication, showers daily etc. Paulo is able to help assist Oscar if he suffers a fall, and helps Oscar by doing most of the housework, although Oscar is still able to do the cooking. They go shopping together and go out socially to the local club to play bingo and have a drink with friends. Friends and family know that they are not a couple.

Finding - They are not living in a de facto relationship as they are only providing each other with support and are caring friends to one another.

In cases where a person is providing care and support to a former partner to whom they are/were legally married or living in a de facto relationship, the decision maker should not form the opinion that a person is living in a de facto relationship solely on the basis that the 2 parties were living in a de facto relationship in the past. Frequently there may be an existence of some of the 5 factors, however, the decision should be made on the basis of other information such as why the arrangements are in place, e.g. there may be no other person available to provide the care.

Example: Shirley had been married to Jack for 20 years when she moved out of the marital home because their relationship had completely broken down, though they remained friends. Five years later Jack was involved in a motor vehicle accident and he subsequently became a quadriplegic. Following the accident he became very depressed and began drinking heavily. Full-time paid carers cared for Jack initially. However, his alcoholism worsened and he would become quite angry, abusive and sexually disinhibited. The care organisation would no longer provide care for him, as it was not safe for the staff to attend. Shirley reluctantly agreed to move back into the marital home to care for Jack as she recently retired from work and could claim CP. Shirley and Jack had never divorced and they still jointly own the home.

Finding - Shirley and Jack could not be considered to be living in a de facto relationship. Shirley is providing the care and support of Jack not because she feels a commitment to their relationship, but due to the fact there was no-one else to care for him and admission to a nursing home was not appropriate due to his age.

Evidence

In deciding de facto cases, both parties may be interviewed and asked to provide additional information. Consideration is then given to the range of information available to determine whether the parties are living in a de facto relationship.

When deciding to interview a partner for additional information discretion must be exercised to ensure that the contact is appropriate. For instance, there may be circumstances, such as where there are indications that family and domestic violence may be present, where it is not appropriate to interview a partner at all. Alternatively, there may be circumstances where additional care and discretion is critical, such as where a claimant/recipient fears disclosure of their sexual preference and or their same-sex relationship as a result of the interview.

Evidence is any information about a claimant/recipient's relationship arrangements and income, which could be obtained from 3 main sources:

  • Centrelink records,
  • external sources, e.g. third parties - family, friends, neighbours, colleagues, financial institutions, government departments (ATO), superannuation fund and other organisations, and
  • the claimant/recipient and the other party.

Requests for information from other parties are made by letter and only names the claimant/recipient.

It is not mandatory to obtain evidence from independent professionals to reach a decision that a person is not a member of a couple. Particularly, if the claimant/recipient has not previously engaged with any of the suggested independent professionals in a professional capacity.

A thorough investigation is to take place before a decision is made, and where possible all evidence is to be verified by external sources in writing. Unless evidence is available, the decision maker should not form an opinion that a person is a member of a couple.

The presence of family and domestic violence may indicate that a person, whether or not they reside under the same roof as the other party, is not a member of a couple.

Note: Moral judgements or suspicions are not relevant to the decision.

Factors to consider for investigating de facto relationships

The 5 factors to be considered in establishing whether a de facto relationship exists are:

  • financial aspects of the relationship,
  • nature of the household,
  • social aspects of the relationship,
  • presence or absence of a sexual relationship, and
  • nature of the commitment.

After collecting evidence for all of the 5 factors the decision maker must form an opinion about whether the claimant/recipient is living in a de facto relationship. Making a determination that a person is a member of a couple requires that the indicators for a de facto relationship outweigh the indicators that the person is not in a de facto relationship.

All 5 factors must be considered. No single factor should be seen as conclusive and not all factors need to be present. For instance, the presence or absence of a sexual relationship is considered but does not, by itself, indicate whether or not a person is a member of a couple.

A claimant/recipient's opinion about whether or not their relationship is similar to a married couple or registered relationship couple should be considered but is not sufficient to make a decision.

Different groups in society have different views about what constitutes a de facto relationship. Each case must be considered on its own merits, giving consideration to cultural background including gay, lesbian, bisexual and transgender cultural issues, ethnicity and religious beliefs when making a determination.

Financial aspects of the relationship

The degree of financial interdependence, including whether arrangements for paying household expenses such as electricity, water, food or telephone are indicative of one person providing financial support for the other.

Important indicators to consider:

  • Whether both names are listed on tenancy applications, lease agreements, or mortgage applications.
  • Whether the claimant/recipient has stated the nature of the relationship with the other person on applications for accommodation, utility and telephone connections, including whether they have presented as a couple for financial gain, i.e. to obtain a loan.
  • Whether one or both parties are providing financial support to the other, directly or indirectly, e.g. paying the repayments on the other person's loan.
  • Whether one or both parties are claiming the other as their partner and/or dependant for taxation, health, insurance, welfare or other purposes.
  • Whether there is joint ownership of major assets. Joint ownership of only a few small items such as a television or kitchen appliances is not a strong indicator of financial interdependence.
  • If there are joint liabilities, e.g. a joint mortgage or loans.
  • Whether one party is nominated as a beneficiary of a will, life insurance policy, superannuation payment or compensation payment.
  • Whether there are joint bank accounts.
  • Whether one party has a right to enforce obligations in respect of the other, such as being a guarantor for a loan for the other person.

Financial aspects can be an important factor, but lack of financial interdependence would not necessarily be a strong indicator that the claimant/recipient is not in a de facto relationship due to the increasing trend for couples to maintain separate finances. However, it is likely most couples in a de facto relationship will be financially intertwined in some way.

The presence of economic abuse may indicate that a relationship has broken down and that a person is no longer considered a member of a couple.

Note: People who share ('sharers') often split financial costs. The cost of accommodation is a major reason why people who are not in a de facto relationship share accommodation and household expenses. People may also share accommodation, as they want the companionship of another person, or for other reasons such as physical and personal security and assistance with home maintenance. Claimants/recipients with intellectual or mental health problems may share to provide care and support to each other. Sharers usually share equally the costs of rent, utility bills and basics such as bread, milk, toilet paper, cleaning items, etc.

Nature of household

A person who is considered to be living in a de facto relationship will generally be living under the same roof as another person. If one person is absent from the home it must be determined if the absence is temporary, or permanent. If a couple's home remains the home of an absent partner then the couple is still considered to be living in a de facto relationship.

Example 1: If one member of the couple is away on holidays but will be returning to the shared home, they are considered to be living together in a de facto relationship.

Example 2: If one person's employment results in their frequent absence from the home and is the only reason for their absence, the couple is considered to be living together in a de facto relationship. Occupations requiring frequent absences from home include truck driving, rigging, mining, commercial fishing, service in the defence forces and army reserves.

Finding - the parties are 'not living separately and apart on a permanent or indefinite basis'.

Example 3: Two people have been in an ongoing intimate relationship for 8 years but live at separate addresses. Although the 2 are committed to their relationship and are perceived by family and friends to be a couple, they have no plans to live together as neither wishes to significantly alter their lifestyle. The couple have separate bank accounts but often pool their resources for holidays, bills and meals, and they share ownership of a holiday home.

Finding - the parties may be considered to be in a de facto relationship, despite not living together, as they have an intimate and ongoing relationship, are recognised socially as being in a relationship, and pool resources in certain situations.

The separation means more than a physical separation as it involves the destruction of the marital/de facto relationship (the consortium vitae), and one or both parties form the intention to sever or not to resume that relationship and act on that intention. Usually one party moves out of the home as a result of the separation.

Important indicators to consider:

  • The usual occupants in the house and the relationships between them.
  • The physical set-up of the household, which may indicate that both parties share a bedroom and common living areas.
  • How the household chores are shared, including whether one does the cooking, cleaning or washing for the other person. For example, the sharing of tasks between people in shared accommodation (and not in a de facto relationship) often have a roster/agreement of household tasks.
  • The name of parents on the child/ren's birth certificate.

Parents of the child/ren

With Family Law changes emphasising shared parenting of children, a claimant/recipient and their ex-partner who jointly exercise parenting responsibilities may share parenting without themselves being in a relationship, i.e they will present as 'parents' to society rather than as 'members of a couple'.

Non-custodial parents are gaining more access time with their children and parents are encouraged to maintain a good relationship for the sake of the children. As a result, some non-custodial parents may spend some or a good part of their access visits with their children in the custodial parent's home. Many children feel more comfortable in their own home environment and it enables the non-custodial parent to participate in activities the children enjoy, assist with homework, meet their child/ren's friends, and communicate with the other parent about parenting issues, etc. Some non-custodial parents may also care for the children in the custodial parent's home while the custodial parent is working, especially if the work is at weekends or at night. This type of arrangement is not an indicator of a de facto relationship.

Example 1: Susan and Andrew are divorced Susan receives PPS. The 2 parties jointly share the parenting of their 2 children and will present as parents together at parent/teacher interviews, school assemblies and concerts, as well as at the children's sporting functions.

Example 2: Mary and Joan separated 12 months ago when Joan left the home following the breakdown of their relationship. Neither party wishes to reconcile. Mary receives PPS. She works 5 hours each weeknight packing shelves at the local supermarket. Her ex-partner Joan cares for their 3 children in her home while she is at work, and usually returns to her home to sleep. At times if Joan has to get up early the next day for work or to take one of the children to an early game of soccer she may sleep in the spare bed in her son's room or on the lounge.

Note: Schools, child-care centres, sports organisations, etc. are under NO circumstances to be contacted as part of the investigation of a de facto relationship unless:

  • Exception 1: The claimant/recipient has provided the name of a person at the school, child-care centre, etc. as a referee, and has given permission for that person to be contacted.
  • Exception 2: Investigations by the Fraud Team where prosecution action is a likely outcome and it is essential to the investigation.
  • Exception 3: During the AAT appeal process where it is essential to the appeal.

Social aspects of the relationship

The social aspects of a relationship take into account how a couple presents themself to society and how others view them in society.

Important indicators to consider:

  • The manner in which the persons present themselves to the community i.e. as a de facto couple or as friends.
  • Whether or not they present as a couple at joint social or leisure activities.
  • Whether or not the person fails to correct an impression that they are partnered to friends, family, work associates.
  • Whether or not the claimant/recipient or the other person have presented as partnered or living in a de facto relationship in writing or verbally to third parties, such as employers, landlords or business proprietors.
  • Whether or not family, friends and associates perceive that they are a couple.
  • Whether or not there are shared plans such as spending Christmas and holidays together as a couple or family unit.

Presence or absence of a sexual relationship

The presence of a sexual relationship does not by itself prove that a couple are living together in a de facto relationship, nor does its absence prove they are not. Inquiry in this area should be restricted to establishing whether there has been the existence of such a relationship and whether it is ongoing and exclusive. This aspect of the relationship is taken into account along with the degree of emotional support and other forms of interdependence and commitment.

Important indicators to consider:

  • Whether or not the claimant/recipient and the other person have an ongoing exclusive sexual relationship and the duration of that relationship.
  • Whether or not the claimant/recipient and other person have a mutual child/ren.

Nature of commitment

The decision maker should determine if there is an emotional attachment that is qualitatively different to the commitment of either party to anyone else at that time and qualitatively different to relationships with close relatives, friends or co-tenants.

The presence of family and domestic violence may indicate the absence of commitment and that the person is no longer a member of a couple.

Important indicators to consider:

  • What does the claimant/recipient understand by the term 'de facto relationship'?
  • What are the claimant/recipient's own ideas and perceptions about their relationship, and how does the claimant/recipient compare their relationship with that of a de facto relationship?
  • Does the couple have a mutual commitment to the relationship and what is the strength of emotional ties?
  • Evidence of companionship and emotional support provided to each other, including care provided for each other in times of physical illness or personal crisis. (Persons in share households and those providing care to a person with a disability may provide companionship and emotional support to each other which is qualitatively different to persons in a de facto relationship.)
  • Evidence of domestic violence, e.g. court documentation, which may indicate the absence of commitment and/or emotional support.
  • Whether the claimant/recipient and the other person exert influence over each other's long-term plans or decisions.
  • Whether the people consider that the relationship is likely to continue indefinitely.

Note: 'Indefinite' does not mean that the couple plan to remain together permanently or for life. If a person claims they do not know how long the relationship will last but have no immediate plans to leave the relationship, the relationship is considered indefinite.

Act reference: SSAct section 4(2) Member of a couple-general, section 4(3) Member of a couple-criteria for forming opinion about relationship, section 4(3A) The Secretary must not form the opinion…

Policy reference: SS Guide 2.2.5.20 Determining Living Separately & Apart, 2.2.5.30 Determining Separation Under One Roof

Last reviewed: 2 January 2019