Are you in a de facto relationship?
Over the last decade or so, the legislative definition of a de facto relationship has changed significantly. Initially, the definition denoted a relationship which was strictly heterosexual, with references to “a man and woman” who were not married, albeit lived as “husband and wife” abounding across jurisdictions. This recognition of same-sex couples as parties to de facto relationships is also evident in section 4AA of the Family Law Act wherein all reference to sexual orientation and gender of the parties has been erased, except in subsection (5) wherein it is noted that a “de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex.”
Accordingly, for a de facto relationship to exist the following circumstances must be met:
- The parties must not be legally married;
- They must not be related by family; and
- When the totality of the circumstances of the relationship are considered, the parties are viewed as “a couple living together on a genuine domestic basis.”
Whether or not two people are regarded as couple is determined by having regard to numerous factors. The Act lists nine factors as particularly worthy of consideration, but notes that the Court can have regard to any matters which are appropriate in regards to the circumstances of a particular case. The nine factors identified in the Act are:
- The length of the relationship;
- How long the parties have lived together;
- Whether they are sexually intimate;
- The extent to which the financial affairs of the party are intertwined;
- The ownership, use and method of acquiring their property;
- Whether they are both committed to sharing their lives;
- Whether the relationship has been registered as a de facto relationship;
- The arrangements in place for the care and support of any children;
- The public aspects of the relationship – are they perceived as a couple by the community.
Interestingly too, a de facto relationship can still be found to exist in circumstances where one party is legally married to someone else. In this sense, the absence of monogamy fails to protect against a finding that a de facto relationship exists. This marks a substantial departure from the wording of previous legislation which, as flagged earlier in this article, included in the definition of de facto the requirement that the couple lived as man and wife, a phrase which denotes exclusivity.
In practical terms, this means that as a person can be party to a marriage as well as a de facto relationship, a person could be found to be in a de facto relationship with the person with whom they are having an extra-marital affair. Due to the laws that came into force in March 2009 which brought de facto couples under the Family Law Act 1975 for the purposes of financial matters (see: article entitled ‘De Facto Financial Matters’), a person engaged in an affair which is found to constitute a de facto relationship may well be required to pay maintenance to their partner or engage in some division of their financial assets when that relationship ends.
These so-called ‘mistress laws’ were tested in the case of Jonah & White [2011] FamCA 221, wherein Ms Jonah sought a declaration that she and Mr White had been in a de facto relationship, and thus that she was entitled to a property settlement upon their separation. Ms Jonah and Mr White had been in an on-again off-again intimate relationship for seventeen years; a relationship which ended in 2009. At the time of their relationship, Mr White was married. Over the years, Ms Jonah and Mr White had seen each other for several days at a time every few weeks, and there were occasions when they spent a few weeks at a time in each other’s company. Relevantly too, Mr White paid to Ms Jonah significant sums of money on a monthly basis, yet in all other regards their finances were kept separate. Ultimately, the court held that the parties were not in a de facto relationship, a conclusion reached in part due to the secretive nature of the couple’s relationship.
The outcome in this case emphasises that scandal will not overcome substance: a court must find the relationship to be a de facto one by virtue of its conformity with the criteria noted in the Act before an order for property settlement or ‘spousal’ maintenance can be made.
CELESTE WHITE
Law Clerk,
Litigation and Dispute Resolution
