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Family law legal and precedent issues

De facto law in Australia: Friends with benefits – without benefits

By August 15, 2022February 23rd, 2024No Comments

Are you in a de facto relationship with your partner?  It may be that you know this, because you have agreed between you that it is the case.  On the other hand, perhaps your relationship is in something of a “grey zone”, where you are uncertain about the nature of your relationship’s status in the eyes of the law.  But when it comes to de facto law in Australia, it’s crucial that you are aware of how your relationship status might affect your financial position, should you end up separating and one of you applying through the courts for a property settlement.

Under Australia’s family law, de facto couples who separate are entitled to almost exactly same rights, and are subject to almost exactly the same obligations, as separating married couples.  This means de facto parties are able to pursue a property settlement and/or spousal maintenance through the family court system.  However, a property settlement will only be able to occur if a court is satisfied that a de facto relationship actually existed (unlike for married couples, where the marriage itself is proof of the relationship existing).

Where there is a dispute over whether a de facto relationship existed, the court will need to determine whether a de facto relationship existed. Although the courts have guidelines for factors to consider in such cases, it isn’t as simple as checking off boxes on a list. While there are a list of considerations that the court will examine, no single factor is determinative of the existence of a de facto relationship.

When your relationship is in a grey area, you might be unsure of what your rights would be if you were characterised as being “de facto” in the eyes of the law.  It may be that you have assets you wish to quarantine from the other party, or it may be that you want to know if you are protected in the same way a married person is when it comes to a financial settlement if the relationship ends.

Therefore, if you are someone who is in a relationship grey zone or uncertain of whether you and your partner’s views of the relationship status accord, it’s important you give some thought to how the courts determine that a de facto relationship existed.  If you are remain uncertain, it’s a good idea to see a family lawyer to get legal advice about whether or not your relationship would be seen as de facto.

Misconceptions on de facto law in Australia

Some de facto parties are mistakenly of the view that since they are not married, they have no legal ties to each other or that there can’t be any economic consequences to having had the relationship. Indeed, it’s not uncommon for people to have deliberately chosen to stay de facto and not get married in order to avoid the economic consequences of marriage— but unfortunately this is misguided.

Others may believe that they are in a de facto relationship because they have been in a long-term “friends with benefits” situation and personally feel it has evolved—only to find that the courts deem it genuinely only “friends with benefits” and refuse to allow a property settlement.

Let’s take a quick look at how de facto law in Australia is applied.

First step: gateway criteria

In Australia’s family law system, to ‘trigger’ the family court’s jurisdiction, you must first meet at least one of the “gateway criteria”:

  1. That the period for the de facto relationship is at least 2 years.
  2. That there is a child of the de facto relationship.
  3. That the relationship is or was registered under a prescribed law of a State or Territory.
  4. That a party to the relationship has made such a significant contribution to the assets or financial circumstances of the other that it would result in serious injustice if an order for alteration of property interests was not made.

Second step: consideration of all other factors

Next, the courts will look at a wide range of factors in considering whether there was a merging of two lives into one, in a marriage-like way, with financial, emotional and physical interdependence.  These factors are:

  • The duration of the relationship;
  • The nature and extent of a common residence;
  • Whether there was a sexual relationship;
  • How much financial dependence or interdependence there was;
  • Whether there was any arrangement relating to one party financially supporting the other;
  • Ownership, use and acquisition of property;
  • How much mutual commitment there was to a shared life;
  • The care and support of children;
  • The performance of household duties;
  • The reputational and public aspects of the relationship; and
  • Any other factor the court considers relevant.

All of these factors are considered holistically, with none of them singly being ‘proof’ of a de facto relationship. For example, living together is significant, especially given the fact that the legislation describes de factos as “living together on a genuine domestic basis”.  But it isn’t enough on its own.  Plenty of people live together for reasons other than that they are in a relationship—for example, simply as housemates, even if they also have casual sex as “friends with benefits”.  

Conversely, not living together doesn’t mean you were not de facto.  There have been cases where even though a couple has never lived together, the court found enough features of a genuine domestic arrangement to classify the relationship as de facto.

“Friends with benefits”

The preponderance of “friends with benefits” situations which end up in the courts as a dispute over de facto status shows that this modern phenomenon can cause a lot of confusion in the community.  The fact is that although the existence of a sexual relationship can go towards convincing a court the relationship is de facto, it completely depends on the existence of other determinative factors as well.

In a recent case involving a “friends with benefits” situation where the parties had never lived together, the court ruled there were not enough features of a de facto relationship to prove it had existed. In the matter, a woman contended she had been in a de facto relationship for ten years and argued that although the parties had not shared a home, they had “lived together across their two individual homes”. But the court did not accept her assertions.  Instead, it ruled that the parties had only been casual lovers, who had shared a working relationship and a friendship.

In this matter, the man was assisted by the fact that he had been very clear, right from the start of the friendship, that it was not going to evolve into a de facto relationship; that he didn’t want to live with her, that he wanted her to be clear about this. The judge said:

I accept that, on more than one occasion, Mr R told Ms S words to the effect of while he might have deep affection for her, want to sleep with her, see her and even help her in certain ways, he did not want to be in a de facto relationship with her.

When it comes to a he said/she said dispute such as this, much will turn on the court’s assessment of each party’s credibility. In this matter, the court found the man to be the more truthful witness, finding the woman had reconstructed her evidence in a self-serving way (for example, she had told various Government agencies that she was single at the time she now claimed she was actually de facto).

Our tips for those in ambiguous relationships

  • Have the conversation with your partner to clarify the relationship status.  
  • If you are certain you do not wish your relationship to be classified as de facto, make this abundantly clear to your partner, ideally in writing. Don’t let them live in hope of your relationship evolving to the de facto quasi-marriage state if there is no hope of this ever happening.
  • On the other hand, merely stating that you are not de facto is not sufficient if all other hallmarks of a de facto relationship are present.  The courts do not need your agreement that the relationship was de facto in order to classify it as such.
  • Keeping finances separate is always a good idea if you wish to later dispute a claim that you were de facto.
  • Know that the courts can be presented with objective evidence from such sources as Centrelink or the Australian Taxation Office.  So if you have consistently represented yourself as “single” to such agencies, this will conflict with your later assertions that you were de facto.  And if you want to try to explain it away as that you were actually lying to the relevant third parties, this may reflect pretty badly on you in court.
  • If you feel you would likely be classified as de facto, see a family lawyer about creating a “no-nup” or cohabitation agreement style of Binding Financial Agreement. This can protect your assets.
  • If you were in a confirmed de facto relationship, there may be many issues to consider after a split, from updating wills and changing nominations with superannuation funds, working out parenting arrangements, applying for spousal maintenance, dividing assets, transferring real estate, and so on. It’s important to obtain legal advice in relation to what you need to do.
  • Don’t make the mistake of thinking that because you were long-term “friends with benefits”, that this will translate to a court finding of a de facto relationship.  “Friends with benefits” situations, in the absence of other clear factors indicating a de facto relationship, will typically result in a “friends without benefits” outcome.  In one case, a court even found a relationship to be only “friends with benefits”, despite the couple sharing a child and living together.  It all depends on the full composite picture and the specific circumstances of an individual case.

De facto law in Australia can be very complex. If you need assistance with assessing whether your de facto relationship meets the requirements under the Family Law Act to begin legal proceedings, or if you need help with any other family law matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.

Please note our blogs are not legal advice.  For information on how to obtain the correct legal advice, please contact Alliance Family Law.


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