De facto situations arise in many areas where practical realities differ from legal frameworks, shaping how institutions and societies function in practice, and the term is used to describe concepts that have, or could have, both a declared official form as well as an unofficial functioning form. For example, ade facto government holds power without legal recognition, ade facto standard is widely adopted in a market despite a lack of formal agreement, and ade facto language is widely spoken even if it lacks official status.
Injurisprudence, ade facto law (also known as ade facto regulation) is a law or regulation that is followed but "is not specifically enumerated by a law."[4] By definition,de facto 'contrasts'de jure which means "as defined by law" or "as a matter of law."[5][6] For example, if a particular law exists in one jurisdiction, but is followed in another where it has no legal effect (such as in another country), then the law could be considered ade facto regulation (a "de facto regulation" is not an officially prescribed legal classification for atype of law in a particular jurisdiction, rather, it is a concept about law(s).[7][8][5]
Ade facto regulationmay be followed by an organization as a result of the market size of thejurisdiction imposing the regulation as a proportion of the overall market; wherein the market share is so large that it results in the organization choosing to comply by implementing one standard of business with respect to the givende facto law instead of altering standards between different jurisdictions and markets (e.g. data protection, manufacturing, etc.).[9][10][11][12] The decision to voluntarily complymay be the result of: a desire to simplify manufacturing processes & cost-effectiveness (such as adopting aone size fits all approach), consumer demand & expectation, or other factors known only to the complier.[example needed]
Inprison sentences, the termde facto life sentence (also known as a"virtual" life sentence) is used to describe a "non-life sentence" that is long enough to end after the convicted person would have likely died due to old age, or one long enough to cause the convicted person to "live out the vast majority of their life in jail prior to their release."[13][14]
A de facto standard is a standard (formal or informal) that has achieved a dominant position by tradition, enforcement, or market dominance. It has not necessarily received formal approval by way of a standardization process, and may not have an official standards document.
Technical standards are usually voluntary, such asISO 9000 requirements, but may be obligatory, enforced by government norms, such asdrinking water quality requirements. The term "de facto standard" is used for both: to contrast obligatory standards (also known as "de jure standards"); or to express a dominant standard, when there is more than one proposed standard.
Several countries, including Australia, Japan, Mexico, the United Kingdom and the United States, have a de factonational language but no official de jure national language.
Some countries have a de facto national language in addition to an official language. InLebanon andMorocco, Arabic is an official language (in addition toTamazight in the case of Morocco), but an additional de facto language is also French. In New Zealand, the official languages areMāori andNew Zealand Sign Language; however, English is a third de facto language.
Russian was the de facto official language of the central government and, to a large extent,republican governments of the formerSoviet Union, but was not declared de jure state language until 1990. A short-lived law, effected April 24, 1990, installed Russian as the sole de jure official language of the Union prior to its dissolution in 1991.[16]
A de facto government is a government wherein all the attributes of sovereignty have, by usurpation, been transferred from those who had been legally invested with them to others, who, sustained by a power above the forms of law, claim to act and do really act in their stead.[18]
In politics, a de facto leader of a country or region is one who has assumed authority, regardless of whether by lawful, constitutional, or legitimate means; very frequently, the term is reserved for those whose power is thought by some faction to be held by unlawful, unconstitutional, or otherwise illegitimate means, often because it had deposed a previous leader or undermined the rule of a current one.De facto leaders sometimes do not hold a constitutional office and may exercise power informally.
Not alldictators are de facto rulers. For example,Augusto Pinochet ofChile initially came to power as the chairperson of amilitary junta, which briefly made him de facto leader of Chile, but he later amended the nation's constitution and made himself president until new elections were called, making him the formal and legal ruler of Chile. Similarly,Saddam Hussein's formal rule ofIraq is often recorded as beginning in 1979, the year he assumed thePresidency of Iraq. However, his de facto rule of the nation began earlier: during his time asvice president; he exercised a great deal of power at the expense of the elderlyAhmed Hassan al-Bakr, the de jure president.
InArgentina, the successive military coups that overthrew constitutional governments installed de facto governments in1930–1932,1943–1946,1955–1958,1966–1973 and1976–1983, the last of which combined the powers of thepresidential office with those of theNational Congress. The subsequent legal analysis of the validity of such actions led to the formulation of adoctrine of the de facto governments, acase law (precedential) formulation which essentially said that the actions and decrees of past de facto governments, although not rooted in legal legitimacy when taken, remained binding until and unless such time as they were revoked or repealed de jure by a subsequent legitimate government.
(1) This Constitution shall rule even when its observance is interrupted by acts of force against the institutional order and the democratic system. These acts shall be irreparablynull.
(2) Their authors shall be punished with the penalty foreseen in Section 29, disqualified in perpetuity from holding public offices and excluded from the benefits ofpardon andcommutation of sentences.
(3) Those who, as a consequence of these acts, were to assume the powers foreseen for the authorities of this Constitution or for those of the provinces, shall be punished with the same penalties and shall be civil and criminally liable for their acts. The respective actions shall not be subject to prescription.
(4) All citizens shall have the right to oppose resistance to those committing the acts of force stated in this section.
(5) He who, procuring personal enrichment, incurs in serious fraudulent offense against the Nation shall also attempt subversion against the democratic system, and shall be disqualified to hold public office for the term specified by law.
(6) Congress shall enact a law on publicethics which shall rule the exercise of public office.
Two examples of de facto leaders areDeng Xiaoping of the People's Republic of China and generalManuel Noriega ofPanama. Both of these men exercised nearly all control over their respective nations for many years despite not having either legal constitutional office or the legal authority to exercise power. These individuals are today commonly recorded as the "leaders" of their respective nations; recording their legal, correct title would not give an accurate assessment of their power. A modern example of a de facto ruler isAhmed al-Sharaa who became the de facto leader ofSyria after thefall of the Assad regime.[19]
The de facto boundaries of a country are defined by the area that its government is actually able to enforce its laws in, and to defend against encroachments by other countries that may also claim the same territory de jure. TheDurand Line is an example of a de facto boundary. As well as cases ofborder disputes, de facto boundaries may also arise in relatively unpopulated areas in which the border was never formally established or in which the agreed border was never surveyed and its exact position is unclear. The same concepts may also apply to a boundary between provinces or other subdivisions of afederal state.
In South Africa, although de jureapartheid formally began in 1948, de facto racist policies and practices discriminating against black South Africans, People of Colour, and Indians dated back decades before.[a][excessive citations]
De facto racial discrimination andsegregation in the United States (outside of the South) until the 1950s and 1960s was simply discrimination that wasnot segregation by law (de jure). "Jim Crow laws", which were enacted in the 1870s, brought legal racial segregation againstblack Americans residing in theAmerican South. These laws were legally ended in 1964 by theCivil Rights Act of 1964.[32][33][34]
Most commonly used to describe large scale conflicts of the 20th century, the phrasede facto state of war refers to a situation where two nations are actively engaging, or are engaged, in aggressive military actions against the other without a formaldeclaration of war.
InAustralian law, a de facto relationship is a legally recognized, committed relationship of a couple living together (opposite-sex or same-sex).[36]De facto unions are defined in the federalFamily Law Act 1975.[37]De facto relationships provide couples who are living together on a genuine domestic basis with many of the same rights and benefits as married couples. Two people can become a de facto couple by entering into a registered relationship (i.e.: civil union or domestic partnership) or by being assessed as such by theFamily Court orFederal Circuit Court.[38] Couples who are living together are generally recognised as a de facto union and thus able to claim many of the rights and benefits of a married couple, even if they have not registered or officially documented their relationship,[39] although this may vary by state. It has been noted that it is harder to prove de facto relationship status, particularly in the case of the death of one of the partners.[40]
In April 2014, an Australian federal court judge ruled that a heterosexual couple who had a child and lived together for 13 years were not in a de facto relationship and thus the court had no jurisdiction to divide up their property under family law following a request for separation. In his ruling, the judge stated "de facto relationship(s) may be described as 'marriage like' but it is not a marriage and has significant differences socially, financially and emotionally."[41]
The above sense of de facto is related to the relationship between common law traditions and formal (statutory, regulatory, civil) law, andcommon-law marriages. Common law norms for settling disputes in practical situations, often worked out over many generations to establishingprecedent, are a core element informing decision making inlegal systems around the world. Because its early forms originated inEngland in the Middle Ages, this is particularly true in Anglo-American legal traditions and in former colonies of theBritish Empire, while also playing a role in some countries that have mixed systems with significant admixtures of civil law.
Due toAustralian federalism, de facto partnerships can only be legally recognised whilst the couple lives within a state in Australia. This is because the power to legislate on de facto matters relies on referrals by States to the Commonwealth in accordance withSection 51(xxxvii) of the Australian Constitution, where it states the new federal law can only be applied back within a state.[42][43] There must be a nexus between the de facto relationship itself and the Australian state.[44]
If an Australian de facto couple moves out of a state, they do not take the state with them and the new federal law is tied to the territorial limits of a state. The legal status and rights and obligations of the de facto or unmarried couple would then be recognised by the laws of the country where they are ordinarily resident.
A de facto relationship is comparable to non-marital relationship contracts (sometimes called "palimony agreements") and certain limited forms of domestic partnership, which are found in many jurisdictions throughout the world.
A de facto Relationship is not comparable tocommon-law marriage, which is a fully legal marriage that has merely been contracted in an irregular way (including by habit and repute). Only nine U.S. states and the District of Columbia still permit common-law marriage; but common law marriages are otherwise valid and recognised by and in all jurisdictions whose rules of comity mandate the recognition of any marriage that was legally formed in the jurisdiction where it was contracted.
De facto joint custody is comparable to the joint legal decision-making authority a married couple has over their child(ren) in many jurisdictions (Canada as an example). Upon separation, each parent maintains de facto joint custody, until such time a court order awards custody, either sole or joint.
A de factomonopoly is a system where many suppliers of a product are allowed but the market is so completely dominated by one that the other players are unable to compete or even survive. The related termsoligopoly andmonopsony are similar in meaning and this is the type of situation thatantitrust laws are intended to eliminate.
In finance, theWorld Bank has a pertinent definition:
A "de facto government" comes into, or remains in, power by means not provided for in the country's constitution, such as a coup d'état, revolution, usurpation, abrogation or suspension of the constitution.[47]
In engineering,de facto technology is a system in which the intellectual property and know-how is privately held. Usually only the owner of the technology manufactures the related equipment. Meanwhile, astandard technology consists of systems that have been publicly released to a certain degree so that anybody can manufacture equipment supporting the technology. For instance, in cell phone communications, CDMA1X is a de facto technology, while GSM is a standard technology.
Examples of a de facto General Manager in sports includeSyd Thrift who acted as the GM of theBaltimore Orioles between 1999 and 2002.Bill Belichick, the former head coach of theNew England Patriots in theNFL did not hold the official title of GM, but served as de facto general manager as he had control overdrafting and other personnel decisions.
