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Family Law in Canberra – Court rules same sex couple not in relationship after 8 years – Mondaq

By March 12, 2015No Comments

By Alison Ross and Kathleen Coggins

Increasingly, the Courts are being called upon to determine what is, or isn’t, a de facto relationship for the purposes of theFamily Law Act. Such applications ordinarily follow the institution of proceedings for property settlement by one of the partners to the “relationship”, the existence of which is disputed by the other partner.

The Federal Circuit Court of Australia has recently dismissed an application for property settlement proceedings where it was not satisfied that the parties were in a de facto relationship. In a case where the facts presented by each party fell at the opposite ends of the spectrum, the Court in Regan & Walsh [2014] FCCA 2535 determined that a de facto relationship never existed between the parties and, therefore, the Court had no jurisdiction to determine the application for a property settlement.

The Court’s decision is discussed in the following Alert.

Key points

  • Subject to some exceptions, parties must be in a de facto relationship for a period of two years before one of them may make an application for property settlement upon the breakdown of that relationship.
  • If the existence of the de facto relationship is disputed, the onus of proving that a de facto relationship existed falls on the applicant.
  • The respondent, on the other hand, is not required to prove that no such relationship existed.

The existence, or non-existence, of a de facto relationship

A person is defined as being in a de facto relationship with another person if:

  • they are not legally married to each other; and
  • they are not related by family; and
  • having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

In determining whether or not a relationship exists, the Court will consider a range of circumstances including:

  • the duration of the relationship;
  • the nature and extent of their common residence;
  • whether a sexual relationship existed;
  • the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
  • the ownership, use and acquisition of property;
  • the degree of mutual commitment to a shared life;
  • whether the relationship is or was registered under a law of a State or Territory;
  • the care and support of children; and
  • the reputation and public aspects of the relationship.

In a number of cases, the Court has reiterated that each case is different and the Court will consider such circumstances as are necessary to determine whether or not a de facto relationship existed on the balance of probabilities.

The circumstances of this case

The parties agreed that they knew each other from early 2005 and that, at times, they lived together throughout that period and shared sexual relations, but they disagreed as to the nature of their relationship. The applicant’s position was that their relationship was to the exclusion of all others and that it was one of a genuine domestic relationship. The respondent, on the other hand, described the relationship as one of “friends with benefits” and did not concede that there was ever a de facto relationship between the parties.

The respondent continued to engage in a sexual relationship outside of his friendship with the applicant. The Court was not satisfied that the applicant was not aware that this was the case.

The applicant’s position was that he contributed to the household and expenses of the parties. The respondent’s evidence was that the applicant used the respondent’s greater financial stability to his own interests. The Court did not accept the evidence of the applicant in this regard and took into account the applicant’s receipt of social security payments, which the applicant potentially would not have received had the parties been in a genuine domestic relationship.

While the applicant asserted that the parties operated a joint bank account, he failed to produce evidence to support that assertion. There was further evidence to suggest that, during the period in which the applicant contended the parties were in a de facto relationship, the respondent entered into contracts in respect of the purchase of property, including with a third person, to the exclusion of the applicant.

The applicant did not have access to the respondent’s passwords for his computer, mobile telephone or bank accounts.

The Court found that there was insufficient evidence to support a conclusion that there was a mutual commitment by the parties to a shared life. It also wasn’t satisfied that the perception to the world at large was that the relationship of the parties was one of a genuine domestic nature.


This case is one of many examples dealt with by the Court over recent years in relation to the existence of a de facto relationship. Unlike marriages or registered de facto relationships, there is often a degree of uncertainty about the nature of relationships between parties, particularly where what one party perceives as a de facto relationship is regarded as something completely different by the other. In those circumstances, the evidence that the parties provide across a wide range of matters will be critical to the Court’s determination about whether or not a de facto relationship exists.

The case also highlights the importance of a person’s credibility in family law proceedings. The Court found that the respondent to be a genuine and “particularly honest” witness and that “where there is conflict or divergence between the evidence of the applicant and the respondent” the Court was inclined to accept the evidence of the respondent. In a number of respects, the Court found that the applicant’s evidence was “unconvincing in the extreme”.


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