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What is a couple? Determining de facto status

By November 5, 2021February 23rd, 2024No Comments
de facto

A woman has successfully prevented her long term, ‘friends with benefits’ dating partner from claiming he had been her de facto spouse and that he was therefore entitled to seek a property settlement. The Court found that there was no de facto relationship—despite the pair sharing a young daughter.The recent case (given the pseudonyms Tomson & MacLaren) shows how tricky it can be to try to prove the existence of a de facto relationship, or the lack of one, in the family courts. 

Some years ago, the 59 year old man had begun a “fling” with the 48 year old woman. They had a sexual and romantic relationship that was monogamous. They would stay at each other’s houses but kept their own homes and didn’t intermingle their finances. Friends knew them to be dating; the woman said they had been ‘on/off’, ‘boyfriend/girlfriend’ and never moved beyond the stage of dating, despite conceiving a child. She says she only continued to associate with the man because of the child. In her opinion, the man was now motivated by financial gain.

Section 90RD(1) of the Family Law Act deals with how the court can make a declaration that a de facto relationship existed or never existed between two people (of any sex). Under the Family Law Act, a de facto relationship is loosely defined as when two persons “have a relationship as a couple living together on a genuine domestic basis”.

The courts must establish if there was a genuine de facto relationship by taking into account the many factors for and against the existence of a relationship. Judges often have to grapple with this analysis of what exactly comprises a ‘couple’ as opposed to, say, dating partners or ‘friends with benefits’.

To work out if parties were a ‘couple’, the courts consider any or all of a range of factors, including: the length of the relationship, how much their residences were shared, if there was a sexual relationship, how dependent or otherwise finances were, whether there was a mutual commitment to a shared life, care of any children, and reputational and public aspects. 

As the judge in this case noted, de facto partners don’t necessarily have to be living together, nor is monogamy actually even a requirement. The relationship can even be “unhappy, but still subsisting”.

Unfortunately, people often have a different idea than their partner of the nature of the relationship, the level of shared commitment, and whether they are more than simply dating. Not only that but later on, people’s memory of the relationship is seen “through the prism of their own perceptions of the relationship and of the varying degrees of disappointment felt by each at its demise …”, as the judge put it in this matter. 

As such, the actual circumstances can be very unclear. But when it comes to people holding irreconcilable views on the relationship—one says they were de facto, the other denies it—the courts can intervene to make the final determination and enable a party to proceed to seeking a property settlement as a de facto.

Determining whether or not people are in a genuine de facto relationship means the courts take a close forensic look at a lot of elements of the couple’s lives using evidence as an objective witness. The courts have repeatedly shown the critical importance of having detailed affidavit evidence containing objective data. Such data may include bank records, telephone records, medical records or even photos at family functions, evidence which can allow a court to draw conclusions about the relationship. In this matter, the court relied on public records (tax documents, Centrelink and child support applications) to corroborate the woman’s claims of when the relationship had ended and how it had never been a relationship of commitment. The judge placed “considerable weight on the public documents”.

The judge pointed out that assessing whether or not a relationship was de facto means looking at a comprehensive, composite picture and the totality of factors, rather than individual factors. In this case, some elements may have weighed in favour of a de facto ruling: for example, the monogamy and the sharing of a child. However, the judge noted that this relationship never achieved the status of a committed, genuine, domestic relationship. There was no merging of their lives into one, with financial, emotional and physical interdependence.

It’s this merger of two lives that is “the manifestation of coupledom”, said the judge. And in this case, there was insufficient evidence of any commitment, of “coupling” and of “merging of lives”.

You can read this judgment here.

For help 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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