De FactoFamily LawDe Facto Or Friends With Benefits

October 11, 2020
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There is a lot of confusion about what happens when two people start living together.

When a marriage breaks down, the parties to that marriage are entitled to a division of the property of the relationship. Since the recognition of de facto relationships, parties to such relationships are also entitled to a division of the property of the relationship when such a relationship breaks down. With marriage, it is usually a simple thing to establish that a marital relationship exists, by producing a Certificate of Marriage. This is not such a simple thing to do in the case of de facto relationships.

 

There may be cases in which a clear declaration by the parties may have been made that they are in a de facto relationship. It is possible for parities to a de facto relationship to register their relationship if they reside in one of the following states or territories and meet the residency requirements:

  • Queensland
  • New South Wales
  • Victoria
  • Tasmania-
  • Australian Capital Territory
  • Norfolk Island

A de facto relationship can also be registered with Centrelink and, if either party is receiving government benefits, it is often a requirement the Centrelink be advised that a de facto relationship has been established.

Determining whether a de facto relationship exists between two people will depend upon whether they had ‘a relationship as a couple living together on a genuine domestic basis.’ (Section 4AA(1)(c), Family Law Act 1975 (‘the Act’). Section 4AA(2) of the Act goes on to set out a number of factors which should be considered when determining if a de facto relationship exists. These include:

  • the duration of the relationship;
  • the nature and extent of their common residence;
  • the nature of the relationship including whether a sexual relationship existed;
  • the degree of financial dependence or interdependence;
  • the ownership, use and acquisition of their property;
  • the degree of mutual commitment shared in various aspects of life;
  • whether there are children and the arrangements for their care;
  • presentation and reputation of the relationship in public; and
  • whether the relationship has been registered under any State or Territory laws.

Past cases have made it clear that the Court does not consider all of the considerations to be present in order for a de facto relationship to exist. There have also been cases in which the presence of several of these circumstances have not been sufficient to satisfy the Court that a de facto relationship existed. In the case of Regan & Walsh [2014] FCCA 2535, the Federal Circuit Court of Australia found that the relationship between the parties was not a de facto relationship. This case involved two males who had lived together for periods of varying duration over a period of 8 years. Both parties confirmed that they had had a sexual relationship, but they did not agree on the other aspects of the relationship.

Regan, the applicant, contended that during the relationship the parties shared household duties, had both contributed to household expenses and had presented themselves to others as partners. Regan contended that the parties were living together on a genuine domestic basis and asked the Court to declare it a de facto relationship. The Respondent, Walsh, claimed that Regan was a friend with whom he had a sexual relationship and whom he allowed to take up residence with him from time to time when Regan was in need of a place to stay. Walsh denied that there was a de facto relationship.

 

In deciding that there was no de facto relationship, the factors which led the Court to its decision were:

  • There was a lack of financial interdependence:
    • The minimal contributions made by the Applicant to the household expenses;
    • The significantly stronger financial position of the Respondent;
    • The absence of any arrangement or agreement between the parties regarding financial support;
    • The Respondent’s clear intention throughout the relationship to isolate his property and not include the applicant in any of the actions when he acquired new property.
  • The ownership and acquisition of property by the Respondent was not indicative of mutual commitment but was evidence of maintaining separation in financial resources and assets.
  • The parties showed vastly differing levels of commitment to a shared life in relation to:
    • The degree of fidelity displayed between the parties; and
    • The lack of circumstances evidencing an exclusive relationship.
  • The Applicant was unable to adequately establish a reputation among peers or the public aspects of the relationship.

The case of Regan & Walsh shows clearly that just having some of the circumstances of a de facto relationship may not be enough to establish that a de facto relationship exists. In particular, a long term sexual relationship does not make a de facto relationship.

A.L.F. Lawyers have several Lawyers that can assist clients in understanding the impact of their De Facto relationship. To make and appointment contact us on 3088 6161

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