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If your de facto relationship has broken down, you and your ex may come to an agreement over how to divide your finances and property.  Or, you may find yourself in dispute over how to disentangle your finances, in which case you may pursue dispute resolution processes like mediation in order to work things out, just as married and separated couples do.  You may even end up requiring a court to decide on how things should be divided, again, just like married couples.

But sometimes, you and your ex may actually disagree as to whether you even were in a de facto relationship.  That’s when things get a little complicated.  Because before you can ask a court to work out a property settlement for you, you’ll first need to prove to the court that you were in a de facto relationship.  That’s called the “threshold question” in court cases of this type.

And it’s not as simple as merely proving that you were living together under one roof.  There are many factors that a court will need to consider to determine if a relationship was de facto or not.  The courts consider this wide range of factors to put together a composite picture of the relationship, to decide whether de facto status emerges. You can look at all the factors for how the courts determine de facto status according to the Family Law Act 1975 here, or read our previous blog on de facto family law here.

What the courts should not do in determining de facto status

Grappling with the threshold question is tricky, and the courts can get the answer wrong on occasion.  A recent appeal case in the Federal Circuit and Family Court of Australia (pseudonymised as Denys & Kellett) is worth a look, given what it shows about how the courts really must determine de facto status.

In this case, a man and woman disagreed over whether they had been de factos.  Initially, the trial judge ruled they were not and therefore, the woman would be unable to pursue a property claim.  But the woman successfully appealed this decision.  Here’s why the appeal judges said the trial judge got it wrong.

The trial judge had said there was no de facto relationship mainly because the couple had not demonstrated a “mutual commitment to a shared life”.  The trial judge said that the couple had not been de factos, as the woman argued, or renters who were also “friends with benefits”, as the man argued, but that instead they were simply in a “romantic relationship”.

Too much focus on a single factor

The appeal judges found that the trial judge made an error of law by applying the wrong test to determine de facto status, because the trial judge had placed too much weight on a single factor (mutual commitment), elevating that single factor above all others.

A court considering de facto status should not isolate individual factors or place relative weights on any of them, as no factor is more determinative than the other.  Each factor has to be considered together with all the others to create that all-important composite picture.  The appeal judges said:

“The solitary finding about the absence of a mutual degree of commitment to a shared life is not only difficult to fathom in the face of the other findings, but also seems to have been used to outflank the other findings made by the primary judge.”

A needless focus on defining a non-de facto relationship

The other mistake that the appeal judges said was made was that the trial judge had attempted to define the non-de facto relationship, with such labelling said to be “unnecessary and erroneous”.   The appeal judges asked: if a couple is found not to be in a de facto relationship, is it even necessary to try to define what the relationship is?

And they found the only thing that needs to be done is to decide whether a relationship is de facto or not.  There’s no need to digress into trying to categorise a relationship that is found to exist below the threshold of “de facto”. For example, as “friends with benefits”, “boyfriend and girlfriend”, “occasional lovers” or, as in this case, a “romantic relationship”.  On this, the appeal judges said:

“We are of the view that by focusing on a characterisation of the relationship between the parties, rather than addressing the seminal [threshold] question, the primary judge was drawn into error.”

As such, the trial judge’s decision was set aside and the matter sent back for a new hearing.  This means the woman gets another chance to argue she had been de facto with the man and should therefore be able to make a claim on their shared property.

The importance of clearly defining the de facto period

Although successful in her appeal, note that the woman didn’t get exactly what she wanted.  She had asked the appeal court to now declare that the de facto relationship had in fact existed.  But this the appeal court would not do, because there was too much vagueness in the timeframes the woman put forward as to when the de facto relationship had existed. She didn’t seek to define the period of the de facto relationship with enough precision, claiming the couple had lived together for five years, but had also been de facto for two years prior to cohabitating.  Given that timing is important when it comes to claims for financial relief, the appeal judges found it safer to have the matter reheard rather than for them to declare the relationship status.

If you would like assistance with a 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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