When can a de facto partner make a claim for a property settlement?

It is very common for parties to disagree about whether they were in a de facto relationship and when it started or ended, thus impacting whether a claim can be made for a property settlement under the Family Law Act 1975 (Cth) (FLA) and the quantum of the claim. 

The parties may be housemates, friends with benefits, dating, in a caring relationship or separated under the one roof. They may have been in a de facto relationship, but just an unhappy one.

The legal principles considered are broadly:

• Technical requirements which must be established to make a property settlement claim.
• More subjective matters to consider when establishing whether a de facto relationship existed.

This webinar will help you to identify whether your client may or may not be in a de facto relationship despite what they say to you about their status, and when their circumstances may put them at risk of a property settlement claim against them, or a making a claim. 

The webinar will cover:

Technical requirements, including:

• The claim is within a de facto financial cause
• Geography
• Declarations
• Length of relationship and alternative grounds to establish jurisdiction
• Time limit for bringing a claim
• The de facto relationship has broken down.

The factors considered by the courts to establish a de facto relationship or when it started or ended, are often subjective. They include:

• the nature and extent of their common residence
• whether a sexual relationship exists
• the degree of mutual commitment to a shared life
• the reputation and public aspect of the relationship.

Jurisdictional aspects

1.1 De facto financial causes

The Family Court and the Federal Circuit Court (FCFCOA) deals with most property disputes between de facto couples in all states and territories except in Western Australia. Western Australia has its own State Family Court.

For the courts to be able to exercise power under the FLA with respect to property of the parties to the marriage, the relationship must be within the definition of a “matrimonial cause” in s 4(1). 

For de facto relationships, proceedings with respect to property of the parties to a de facto relationship are covered if it is within a “de facto financial cause”:

(c) proceedings between the parties to a de facto relationship with respect to the distribution, after the breakdown of the de facto relationship, of the property of the parties or either of them.

De facto property and maintenance claims may be made in more limited circumstances than married relationships. 

There are separate clauses relating to proceedings regarding vested bankruptcy property, proceedings with respect to financial agreements, and third parties. 

Orders for maintenance or property division cannot be made in an intact de facto relationship. They can however, be made where a married couple is not separated. This was confirmed by the High Court in Stanford v Stanford (2012) FLC 93-512; [2012] HCA 52.

1.2 Geographic conditions

A declaration of the existence of a de facto relationship can be made, “only if the court is satisfied that one or both of the parties were ordinarily resident in a participating jurisdiction when the primary proceedings were commenced” (s 90RG). They cannot be resident in Western Australia or overseas.

A property order or declaration can only be made if the court is satisfied that the geographical requirements of s 90SK(1) are met:

(a) that either or both of parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the application for the declaration or order was made (the application time ); and 

(b) that either:

(i) both parties to the de facto relationship were ordinarily resident during at least a third of the de facto relationship; or

(ii) the applicant for the declaration or order made substantial contributions in relation to the de facto relationship, of a kind mentioned in s 90SM(4)(a), (b) or (c); 

in one or more States or Territories that are participating jurisdictions at the application time.

An alternative condition is that the parties to the de facto relationship were ordinarily resident in a participating jurisdiction when the relationship broke down (s 90SK(1A)).

1.3 Declaration about existence of de facto relationships

A court can make a declaration about whether or not a de facto relationship existed or not under s 90RD(1).  A declaration under s 90RD(1) may also declare any or all of the following: 

1. the period, or periods, of the de facto relationship for the purposes of s 90SB(a);
2. whether there is a child of the de facto relationship;
3. whether one of the parties to the de facto relationship made substantial contributions of a kind mentioned in s 90SM(4)(a), (b) or (c);
4. when the de facto relationship ended;
5. where each of the parties to the de facto relationship was ordinarily resident during the de facto relationship.

If the jurisdictional hurdles about time and geography are met for the de facto relationship, there are still further hurdles.

1.4 Length of relationship

One of the following four criteria must be met under s 90SB before the court can make a maintenance or property order, or declaration about property interests:

(a) that the period, or the total of the periods, of the de facto relationship is at least two years; or 

(b) that there is a child of the de facto relationship (and for the purposes of Part VIIIAB, a child is a child of a de facto relationship if the child is the child of both of the parties to the de facto relationship); or 

(c) that: 

1. the party to the de facto relationship who applies for the order or declaration made substantial contributions of a certain kind; and
2. a failure to make the order or declaration would result in serious injustice to the applicant; or 

(d) that the relationship is or was registered under a prescribed law of a state or territory.  

In practice most claims meet the two year hurdle. 

In Dahl & Hamblin (2011) FLC 93-480 the trial Judge determined that a shorter period could be aggregated with a longer period to establish the requisite two-year period. The two periods were between 1994 and 1998, and between April 2008 and October 2009. They were, therefore, almost 

10 years apart. For a two year period between May 2006 and April 2008 the respondent was in a de facto relationship with a third party.  The Full Court said (at paras 21, 24):

“By the use of the word “periods” in s 90RD(2)(a) and s 90SB(a), Parliament must clearly have envisaged that a de facto relationship can breakdown and resume with the result that the original earlier period of the relationship and any resumed period (or periods) after other breakdowns are capable of aggregation to establish the total time of the relationship for jurisdictional purposes. If this was not the intention, why was the word “periods” introduced into the legislation? …

Accordingly, we think that the better view must be that the introduction into Pt VIIIAB of the concept of “periods” and thus the possibility of the aggregation of periods must mean that for the purposes of Pt VIIIAB there can only be one relationship, albeit in some cases broken into periods.”

The Full Court also concluded that a period prior to the commencement of Pt VIIIAB can be included in the aggregated two year period because the FLA does not state otherwise. 

On the issue of “substantial contributions” and “serious injustice”

Chief Justice Holden said in another context in relation to the meaning of “substantial” V & K [2005] FCWA 80 at 42:

“In my view, substantial means something more than usual or ordinary. In my view [the section] is aimed at more exceptional circumstances where serious injustice may be caused by the application of [the relevant provision].”

This interpretation of the word “substantial” was confirmed by the Full Court of the Family Court of Australia in Redmond & Mullins [2015] FamCAFC 69. 

Judge Johnston in Wall & Mitchell [2012] FamCA 114 said (at [303]:

“If usual or ordinary contributions were sufficient to amount to “substantial contributions” within the meaning of s 90SB(c), there would be little purpose in the two years requirement in s 90SB(a) of the Act. This is because in most de facto relationships to some extent usual or ordinary contributions would be a feature of such relationships.”

The Full Court of the Family Court decision in Harriot & Arena [2016] FamCAFC 69 said (at [59]):

“If the appellant’s contribution of the net proceeds of her home constituted a “substantial” contribution, it will be unnecessary for us to determine the somewhat more vexed question of whether the actions taken by the appellant in relation to her career and her child should be characterised as “contributions”.”  

However, as the Full Court in Harriot & Arena said (at [21]):

“The cases therefore seem to suggest that before a contribution can be substantial, it must be more than usual or ordinary. This is a vague and subjective standard. In the diversity of relationships that present before courts exercising jurisdiction under the Family Law Act how is “usual” or “ordinary” to be determined other than by reference to the facts of the case before the court at the time? How could a judicial officer make the comparisons that need to be made by using this standard without referring to extrinsic evidence ie. the judicial officer’s own perception of contribution in other cases?”

The Full Court concluded that the contribution of $80,000 from the sale of the appellant’s home was “substantial”. The respondent effectively conceded this so that it was unnecessary for the Full Court to read a concluded view about the other “contributions” upon which the appellant relied.

1.5 Time limits

For the FLA to apply, the de facto relationship must have broken down after 1 March 2009 in all States and Territories except Western Australia (which has not referred its powers) and after 1 July 2010 in South Australia.

Proceedings must be issued within 2 years of the date of separation. In Madin & Palis [2015] FamCAFC 65 the Full Court of the Family Court determined that the 2-year limitation period commenced on the day after final separation. The parties separated on 9 January 2011. The trial judge held the limitation date was 8 January 2013 and dismissed the application filed 9 January 2013 as being out of time. The Full Court found that the trial judge was in error and that the limitation period commenced on 10 January 2011 and ended at midnight on 9 January 2013. The application was therefore filed in time. 

An extension of time can be granted under s 44(6), which is similar to the provisions which apply to married couples. However under s 44(3) which only applies to married couples, proceedings can also be instituted out of time with the consent of both parties.

An example of a case where leave was sought to apply to issue property settlement proceedings out of time in a de facto relationship was Worth & Riley [2017] FamCA 393. Benjamin J applied the same principles as for married couples and followed the case law under s 44(3). The delay was 26 months from the end of the standard application period. Leave was not granted due to the hardship granting leave would cause to the respondent husband. The husband made his decision to retire without consultation with the wife, although he informed her of the decision. The wife did not warn him then of her potential claim for property and maintenance. His evidence was that he would not have decided to retire if he knew of the potential claim. Benjamin J found that the wife had a modest claim to the husband’s superannuation and he was unlikely to be able to make up any lost superannuation and consequent income given the failure of the wife to commence the proceedings in the standard application period.

1.6 The de facto relationship has broken down

In limited circumstances, property and maintenance orders can be made with respect to a married couple who are not separated, but it is an essential requirement in de facto relationships that the relationship has broken down.

Many of the cases dealing with de facto jurisdictional disputes deal with when the relationship broke down, as the time effects:

• Whether a claim can be made automatically or whether the leave of the court must be sought as they have been separated for more than 2 years
• The quantum of the claim as a longer relationship may increase a party’s entitlements.

A dispute about this, was decided by the High Court of Australia in Fairbairn v Radecki [2022] HCA 18; (2022) FLC 94-083.

Late 2005, early 2006	The parties commenced a de facto relationship. The parties agreed to keep their assets separate but lived in a house owned by the wife (the home).
	The wife began to suffer rapid cognitive decline and she was diagnosed with dementia.
By 2017	Wife’s capacity to make long-term decisions was largely, if not completely, absent
By April 2017	The parties occupied separate rooms in the home, with their own personal belongings in their respective rooms.
Mid 2017	The wife qualified for full-time placement into an aged care facility. She executed an enduring power of attorney in favour of her children.
July 2017	Husband drove the wife to a local courthouse, and the existing enduring power of attorney was revoked and replaced by another enduring power of attorney in favour of the husband.
Late 2017	Husband arranged for a solicitor to attend on the wife for the purpose of drawing an updated will. The new will was more favourable to him than the wife’s previous will and conferred on him a life interest in the home.
January 2018	NSW Civil and Administrative Tribunal (NCAT) appointed the NSW Trustee and Guardian (the Trustee) to make health and welfare decisions on behalf of the wife.
March 2018	Trustee decided to move the wife into an aged care facility. The Trustee wanted to sell the home to fund the “refundable accommodation deposit” (“the RAD”).
25 May 2018	Husband opposed the sale of the home and suggested that the wife’s accommodation be paid for by way of the daily accommodation payment (“the DAP”).from her superannuation while he remained in the home.
May 2018	Wife’s Centrelink payments suspended as the husband had completed a Centrelink “income and assets assessment form” nominating himself as the wife’s “spouse”, but had declined or failed to disclose his financial circumstances to Centrelink.
	During this time, the husband brought the wife home each week. He wanted her to return home to live. He regularly visited her at the aged care facility to assist at mealtimes.
By 2019	Trustee had formed the view that the de facto relationship between the appellant and the respondent had broken down. Husband did not agree with this and maintained that the wife wanted him to remain living at the home and that there had been no breakdown of the de facto relationship.
June 2019 approx	Husband commenced paying $1,000 per fortnight towards the aged care facility’s fees, and sought that he later be reimbursed from her estate. These maintained the level of the debt but did not reduce it.
	Trustee commenced proceedings on behalf of the wife seeking property settlement orders under s 90SM of the FLA, in particular, an order for the sale of the home.

The trial judge found that the respondent’s conduct after the wife’s mental capacity deteriorated was inconsistent with a “fundamental premise” of their relationship, namely the strict separation of their assets. That inconsistent conduct, all of which occurred while the appellant was “labouring under an incapacity”, comprised: 

• the entry into a new enduring power of attorney that “favoured [the husband’s] rights over hers”
• the husband instructing solicitors to prepare an updated will “on terms vastly more favourable to him”
• the husband’s “unwillingness to cooperate” with the wife’s children in the administration of her affairs
• the husband’s “persistent” refusal to permit the Trustee to sell the home to cover the RAD while “neglecting to pay any of the [wife’s] care costs”, thus depleting her estate
• the husband’s proposal that the wife’s “super be used in the first instance to meet her costs”
• his subsequent proposal that “he pay the DAP fees in the first instance and be reimbursed by the [wife’s] estate”
• the husband’s “ongoing and deliberate frustration” of the Trustee’s lawful administration of the wife’s financial affairs. 

The trial judge found that this conduct was “unequivocally indicative of and consistent only with … the cessation of the de facto relationship as it previously existed” ([2020] FCCA 1556 at [161]). He held that the relationship had ceased at the latest by 25 May 2018, when the husband suggested that the DAP be paid for in the first instance from the wife’s superannuation while he remained in the home. The trial judge imputed an intention to separate from the wife, and it ]followed that there had been a breakdown in the de facto relationship. 

The husband appealed and his appeal was upheld by the Full Court of the then Family Court of Australia disagreed. The Full Court reviewed the conduct identified by the primary judge. None of the conduct was found to be fundamentally inconsistent with a continuing de facto relationship. Some of it was considered to be “bad behaviour” on the part of the husbandrespondent but such behaviour, the Full Court observed, is “all too often a hallmark of a relationship” (Radecki & Fairbairn (2020) (2020) FLC 94-001; 2020] FamCAFC 307 at [49]). At most, their Honours concluded that the conduct demonstrated that a dispute existed between the husband, on the one hand, and the Trustee and the wife’s children, on the other, as to how best to manage affairs Radecki (2020) at [53].

The Trustee successfully appealed to the High Court, and the orders of the trial judge were reinstated. 

“In the context of a human relationship, ‘breakdown’ refers to the ‘end’ or ‘breakup’ of what had been an enduring emotional bond. It is the ‘breakdown’ or ‘end’ of a de facto relationship that is the trigger point for the Federal Circuit and Family Court to be seized of jurisdiction to make a property settlement order under s 90SM of the Act”

The High Court rejected the arguments that the parties’ de facto relationship had broken down in any of the following circumstances:

• When the appellant was placed into an aged care facility such that the parties were no longer physically living together
• Because of the wife’s mental incapacity
• Occupying separate rooms before wife moved into aged care facility

The High Court in Fairbairn confirmed that the following principle in Stanford v Stanford (2012) FLC 93-518; [2012] HCA 52, applies to de facto relationships as well as to married couples:

“where the ‘necessary or desirable adjustments’ are not made, and one party fundamentally acts contrary to the interests of the other in relation to the property of the couple, it may be possible to conclude that the mutual commitment to a shared life has ceased.”

The High Court in Fairbairn held:

• It was an essential feature of the relationship that the parties kept their assets separate from each other, but by 2017, the husband had begun to act as if he were no longer bound by this arrangement.
• Whilst there had been a degree of mutual commitment to a shared life, that commitment ceased when the husband refused to make the ‘necessary or desirable adjustments’ in support of the wife and, by his conduct, acted contrary to her needs.

In relation to the meaning of “relationship breakdown” the High Court said (at [29]-[30]):

1. “A de facto relationship will have broken down when, having regard to all the circumstances, the parties no longer ‘have a relationship as a couple living together on a genuine domestic basis’. Such a conclusion is not precluded by the presence of an ongoing relationship of some sort. That is not the inquiry. The question is whether a de facto relationship exists or has broken down.” [29]
2. “In the context of a human relationship, ‘breakdown’ refers to the ‘end’ or ‘breakup’ of what had been an enduring emotional bond. It is the ‘breakdown’ or ‘end’ of a de facto relationship that is the trigger point for the Federal Circuit and Family Court to be seized of jurisdiction to make a property settlement order under s 90SM of the Act. It would make no sense for such a jurisdiction to arise before a de facto relationship had ended.” The appellant’s submission finds no support in statutory context, in history, or in any extrinsic material referred to the Court’s attention.” #check JC[30]

The High Court concluded (at [45]):

3. “The appellant’s primary argument that the parties’ de facto relationship had broken down when the appellant was placed into an aged care facility such that the parties were no longer physically living together must be rejected. It is contrary to the text of s 4AA and to statutory context and purpose to which reference has been made. It is also contrary to real-world considerations. It would be productive of injustice if two people who live apart (including for reasons of health) were incapable of remaining in a de facto relationship.” [32]
4. “The presence of a mutually recognised de facto or marital relationship involving a shared life was critical in each of SZOXP, Crabtreeand Stanford. In Stanford, [(2012) FLC 93-518; [2012] HCA 52] the continued subsistence of such a relationship explained the making of the ‘necessary or desirable adjustments’ to the property interests of the husband and wife. In contrast, where the ‘necessary or desirable adjustments’ are not made, and one party fundamentally acts contrary to the interests of the other in relation to the property of the couple, it may be possible to conclude that the mutual commitment to a shared life has ceased.” [38]

[81343]5. “The appeal must be allowed. That is not because the appellant was obliged to move permanently into an aged care facility. Nor is it because of the appellant’s mental incapacity. While each of these matters may be relevant to the inquiry into whether the de facto relationship between the appellant and respondent had broken down, neither is determinative. A de facto relationship may continue even though the parties physically reside at different locations, and despite one of those parties suffering from (severe) illness.” [42]

6. “Instead, for the purposes of ss 90SM and 4AA of the Act, having regard to all of the circumstances, including the conduct of the respondent, the de facto relationship between the appellant and the respondent had, by no later than 25 May 2018, broken down. Those circumstances demonstrated a persistent refusal by the respondent to make ‘the necessary or desirable adjustments’, to use the language of Stanford, which might have evidenced an ongoing relationship.” [43]
7. “Those circumstances included the fact that the parties had lived together since about 2005 but by 2017 were occupying separate rooms, and that from January 2018 the appellant lived at an aged care facility. It may be accepted that those two circumstances are not of themselves determinative.” [44]
8. “It was, however, an essential feature of the relationship here that the appellant and respondent kept their assets separate from each other, consistently with the Cohabitation Agreements; but by 2017, the respondent had begun to act as if he were no longer bound by this arrangement. He secured a new enduring power of attorney giving him considerable control over the appellant’s assets, including the home; he procured a revised will obtained while the appellant was hospitalised, which markedly favoured his financial interests; and he took these steps when he must have known that the appellant’s capacity to act in her own best interests was impaired. The respondent’s conduct was so marked that it led to the intervention of NCAT and the appointment of the Trustee. Thereafter, the respondent refused to permit the home to be sold, made parsimonious attempts to make financial contributions to support the appellant’s care, refused to cooperate with the Trustee and the appellant’s children concerning her ongoing care, and failed to disclose his own assets to Centrelink. The respondent’s persistent refusal to reside elsewhere and permit the home to be sold served his and not the appellant’s interests.” [45]

The High Court Specifically rejected the view of the Full Court of the Family Court that it was merely a dispute between the respondent, the Trustee and the wife’s children. 

9. “Whilst there had been a degree of mutual commitment to a shared life, that commitment ceased when the respondent refused to make the ‘necessary or desirable adjustments’ in support of the appellant and, by his conduct, acted contrary to her needs. It may otherwise be accepted that the breakdown of the respondent’s relationship with the appellant’s children is not, in the circumstances of this case, a decisive consideration. In contrast, the ‘public aspects’ of the relationship are important. This is a case where the respondent’s conduct in threatening the interests of the appellant justified the intervention of NCAT and the appointment of the Trustee to take responsibility for her. Thereafter, it has been the Trustee, and the not the respondent, that has made, and is trying to make, the ‘necessary or desirable adjustments’”. [46]
10. “In aggregate, these circumstances support the conclusion that there had been a breakdown in the parties’ de facto relationship by no later than 25 May 2018. With respect to the Full Court below, this was more than just a dispute between the respondent – a man found to have behaved poorly – and the Trustee and the appellant’s children.” [47]

Elements governing existence of a de facto relationship

2.1 Legislation

Section 4(1) of the FLA defines a “de facto relationship” as having the meaning set out in s 4AA(1).    A de facto relationship is defined in s 4AA(1) as when:

(a) the persons are not legally married to each other;

(b) the persons are not related by family; and

(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

The circumstances considered under s 4AA(1)(c) may include any or all of the factors referred to in s 4AA(2).  The general practice of courts is to consider all of the factors and examine if and how each one applies.  

The factors are: 

(a) the duration of the relationship;

(b) the nature and extent of their common residence;

(c) whether a sexual relationship exists;

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

(e) the ownership, use and acquisition of their property;

(f) the degree of mutual commitment to a shared life;

(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

(h) the care and support of children;

(i) the reputation and public aspect of the relationship.

These are the key elements governing the existence of a de facto relationship. No particular finding of any circumstance is necessary in deciding the existence of a de facto relationship (s 4AA(3)). In determining whether a de facto relationship exists, a Court can have regard to, and attach weight to, any matters that seem appropriate to the Court in the circumstances of the case (s 4AA(4)).

A de facto relationship can exist between two persons of different sexes or between two persons of the same sex. It need not be an exclusive relationship, and can exist even if one person is legally married to someone else or in a concurrent de facto relationship (s 4AA(5)). The extent to which cohabitation is a necessary pre-requisite is discussed later in this paper. 

One of the difficulties in defining a de facto relationship is that every de facto relationship and, indeed, every married relationship, is very different. As Thackray J said in Truman & Clifton [2010] FCWA 91 (at paras 335-336, 338), when dealing with the Western Australian legislation, which is different to the FLA:

“We live in a pluralist society in which concepts of even the most fundamental institutions, such as marriage, are highly value laden …

In the case of legal marriage we have the certainty associated with the certificate of marriage … those who have complied with the formal requirements of the Marriage Act 1961 (Cth), or its overseas equivalents, are without doubt married. However, the moment a construct such as “marriage-like” is introduced, value judgments will come flooding …

How then is a judge expected to decide whether a relationship between a man and a woman (or indeed under this legislation same-sex couples) is “marriage-like” in circumstances where married couples straddle the spectrum from the deliriously happy to the homicidally estranged?”

The problem under the FLA is similar – what value judgements are there in interpreting the phrase – a “couple living together on a genuine domestic basis”?

Do the parties have to live together?

The definition of a de facto relationship under the FLA, among other things, includes that parties “have a relationship as a couple living together on a genuine domestic basis”. Case law shows that parties can be in a de facto relationship even if they are not cohabiting. They may live separately for various reasons, such as for employment. By contrast, the mere fact that parties are living together does not necessarily lead to the finding that a de facto relationship existed. Whether the couple lived together is only one of the factors and it is a consideration of the whole picture which will lead to the finding of a de facto relationship. When considering if the parties lived together for the purpose of establishing the existence of a de facto relationship, the following should be considered:

• Whether the parties live together, and if not, what are the reasons for this?
• How much time the parties spent together?
• What was the nature of their common residence? Is there one property or do the parties move between each other’s homes?
• What address did each party give for receiving correspondence?

Parties may be in a de facto relationship although they maintain separate homes, but live together in one or both homes.

The following cases are useful in understanding the extent to which the parties live together affects the existence of a de facto relationship. 

Moby & Schulter (2010) FLC 93-447; [2010] 2010 FamCA 784 involved a 4-day hearing in which the parties sought a declaration as to whether a de facto relationship existed and if so for what period or periods. The applicant asserted that a de facto relationship existed between 2002 and approximately October 2009. The respondent denied that there was ever a de facto relationship, but that if there was one, it ended no later than February 2008. 

Justice Mushin said (at para 140):

““The second specific element is the concept of “living together”. In my view, if a couple do not live together at any time, they cannot be seen as being in a de facto relationship. However, the concept of “living together” does not import any concept of proportion of time. In particular, it does not require that a couple live together on a full-time basis.””

Mushin J declared that a de facto relationship existed between the parties in Victoria in 7 separate periods over 7 years for periods which ranged between 4 to 6 months and 2 years

Jonah & White (2012); FLC 93-522 [2012] FamCAFC 200

Ms Jonah and Mr White commenced a 17-year relationship when Ms Jonah began working in Mr White’s company. Mr White was married throughout his entire relationship with Ms Jonah and continued to live with his wife and children. He provided significant financial support to Ms Jonah. The parties did not spend significant time together – seeing each other for approximately 2 to 3 days every second or third week. They travelled overseas together on one occasion for 2 ½ weeks, and on a couple of other occasions spent 2 weeks together. Ms Jonah argued that the parties “also lived together through their emotional communion which occurred not only in each other’s physical presence, but by telephone and otherwise”. The Full Court was not persuaded that “emotional communion” fell within the definition of “living together”.  

The Full Court held that the fact that the parties each kept and maintained households which were distinct from the other pointed to the conclusion that the parties were not in a de facto relationship. However, the trial judge, Murphy J, was of the view that although the parties lived in the same residence for only a small part of each week this did not exclude the possibility that they were “living together as a couple on a genuine domestic basis”. The Full Court agreed with the trial judge –  Murphy J looked at whether there was a merger of their lives into “coupledom”. The decision that there was no de facto relationship was significantly impacted upon by the lack of public aspects to their relationship, not the limited time that the parties spent living together. 

Murphy J said (at paras [65]-[66]) of Jonah & White [2013] FamCA 221:

“It seems to me to be clearly established by authority that the fact that, for example, the parties live in the same residence for only a small part of each week does not exclude the possibility that they are “living together as a couple on a genuine domestic basis” or that the maintenance of separate residences is necessarily inconsistent with parties having a de facto relationship …

The issue, as it seems to me, is the nature of the union rather than how it manifests itself in quantities of joint time. It is the nature of the union – the merger of two individual lives into life as a couple – that lies at the heart of the statutory considerations and the non-exhaustive nature of them and, in turn, a finding that there is a “de facto relationship”.

This case demonstrated that the court will examine the nature and quality of the relationship – the merger of two lives – rather than the quantity of the time together, when determining whether there is a de facto relationship. 

Ricci & Jones [2011] FamCAFC 222 

The parties never lived together and their association ended after 7 months. They had a child together. The wife appealed against the summary dismissal of her application for a property settlement and interim orders, including for maintenance.

The respondent successfully sought the dismissal of the applicant’s application without filing any affidavits or otherwise relying on evidence. It was a risky strategy but it worked as the wife was unable to establish the existence of a de facto relationship. Ina  summary dismissal application, up to applicant to establish cause of action.

The applicant did not assert that the parties lived in the same residence at any time but that:

• they had a child together;
• they did not engage in a sexual relationship until he advised her wife that he had finished his previous relationship.

The Federal Magistrate disagreed with Mushin J’s interpretation of s 4AA(2)(b) in Moby & Schulter (requiring a period of cohabitation for there to be a de facto relationship), which had been followed by the trial judge. However, the trial judge also said that if she was wrong and a period of cohabitation was not required, she was not persuaded that a de facto relationship existed. as correct. While it was concluded that the parties were not in a de facto relationship, the Full Court said (at paras 57, 59):

“We are of the view that minds might reasonably differ as to this interpretation of the subsection that would require a putative de facto couple to have lived together before satisfying the legislative test; however because of the determination of this appeal, it is unnecessary to consider this point further….

It is in our view clear from a reading of the section, and a consideration of the authorities both in this court and in others, that cohabitation can be relevant but is by no means determinative.”

The Full Court in Ricci & Jones agreed with Murphy J in Jonah & White [2011] FamCA 221 (at para 53) where he said:

“It is, however, important to bear in mind that the emphasis on common residence (whether for varying periods of time or not) is but one of the specific factors enumerated within s 4AA of the Act. The section specifically provides that no particular finding in respect of that matter (or indeed any other specified circumstance) is “to be regarded as necessary in deciding whether the persons have a de facto relationship”.”

Regan & Walsh [2014] FCCA 2535

The parties acknowledged that they had shared a residence on various occasions for a total of more than six years between 2005 to 2013. During this time there were periods where the parties lived apart due to employment reasons.

The parties disagreed as to the nature of their relationship. Mr Regan, the applicant, asserted that they were in a de facto relationship, while Mr Walsh did not concede this and described the relationship as one of “friends with benefits”. Despite the fact that the parties lived together for more than six years in total, the Court held that a de facto relationship never existed between them. The lack of evidence of any joint ownership or acquisition of property, of a mutual commitment to a shared life, nor an outward perception of the existence of a de facto relationship contributed to this finding. Additionally, the applicant appeared to contribute little financially to the residence, and only lived with the respondent when he chose to do so for his own benefit and convenience.

Despite a sexual relationship existing between the parties, it was not enough to find the relationship was a de facto relationship without the presence of other factors.

Asprey & Delamarre [2013] FamCA 214

The parties had two children, but did not live together for any period longer than seven weeks. The mother alleged a 9-year de facto relationship. The parties disagreed with regard to how they would live together and where. Her Honour found that this ongoing argument demonstrated a mutual commitment to a shared life. It was held that there was a de facto relationship. 

Martens & Bocca [2016] FamCA 1044

The parties were in a relationship which spanned 13 years. Mr Bocca contended that the parties were not in a de facto relationship, claiming that they merely had a close friendship. Benjamin J found that the parties had been in a de facto relationship for the 13-year period and, as a result, the applicant, Mr Martens, could continue with property settlement proceedings. 

Benjamin J relied heavily on the enormous number of text messages and emails exchanged between the parties. He focussed on this aspect of their relationship when determining the “nature and extent of their common residence”, in accordance with s 4AA(2)(g), despite the fact that they maintained separate homes and had never formally lived together. It was found that the parties spent a couple of nights together each week and they embarked on holidays together.

In considering the other factors in s 4AA(2), Benjamin J found that a substantially monogamous sexual relationship existed between the parties. This was backed up by a large number of text messages and emails, many of which were highly sexual in content. The written communications showed that the parties were both intimate and affectionate.

The parties were mostly financially independent but there were several factors which lead to the finding of some financial interdependence. Mr Bocca had set up a self-managed superannuation fund and Mr Martens was intentionally made a trustee, but unintentionally made a member of that fund. They had also opened a joint bank account, and Mr Martens had done work to maintain Mr Bocca’s house. The parties had made plans to buy a house together, but this was never realised. Mr Bocca ended up purchasing a property on his own, although Mr Martens was heavily involved in the purchase. Mr Martens was also the sole beneficiary of Mr Bocca’s will. His Honour found that there was no question that the parties had “merged their lives”. 

The relationship between the parties was found to be very public. They travelled together and their relationship was well-known to their families. Further, the breakdown of the relationship was highly emotional and much more akin to the breakdown of a marriage than a friendship. Therefore, the parties were found to be in a de facto relationship despite the fact that they had never officially lived together.

The case highlights the unique nature of each de facto relationship and acts as a warning to parties in long-term relationships who may not be aware of the laws relating to de facto relationships.

Wilson & Szwarcvicarovich [2017] FCWA 4

The definition of a de facto relationship is not the same in Western Australia as it is in the rest of Australia. As a result, this case can be distinguished, but the facts are a useful illustration of the problems of defining a de facto relationship.

The parties were in a relationship for 8 years. They had separate households because they each had children from previous relationships. There was no financial interdependence, but they presented themselves to others as a couple, provided care and support to each other’s children and had a deep commitment to a shared life. Ms Wilson’s children gave evidence of the involvement of Mr SzwarcSvicarovich in their lives and that they viewed him as a father figure. Ms Wilson cut Mr SzwarcSvicarovich’s children’s hair and nails, helped treat their hair lice, and cooked and cleaned for them. The parties slept under the same roof for between 2 to 4 nights per week, with the 4 nights occurring in the latter stages of the relationship.

The court accepted Ms Wilson’s explanation for telling Centrelink that she was not in a de facto relationship , and foundbut the judgment is not clear as to what explanation was.that the parties had been in a de facto relationship for more than two years. 

## What did the Court find? ##

Cadman & Hallett (2014) FLC 93-603; [2013] FamCA 819

This was an appeal against a finding that the de facto relationship ended in mid-2010 was dismissed. There was no dispute that they were in a de facto relationship from 1991 to 2000.

In January 2000, the respondent travelled to the United States to consider studying there. He stayed for three months, and on his return the parties did not resume their sexual relationship, but were physically affectionate to each other. At the end of 2000 the respondent returned to the United States and stayed there for six months, studying. The parties communicated by telephone between 3 to 5 times per week. The respondent had sexual relationships with other people, which he discussed with the appellant. They re-commenced living together in June 2001 until the respondent returned to the United States to study in June 2002 – a year later. The appellant travelled to the United States and spent 3 weeks with the respondent during Christmas that year. In May 2003, the respondent returned, but went back again to the United States in February 2004 for another semester of study. The appellant travelled with him and stayed for a fortnight. In October 2004, the respondent returned and the relationship continued. On 30 May 2006, the respondent returned to the United States to commence a Masters program. He was financially sponsored by the appellant. The respondent returned at the end of November 2008, and then left again on 28 January 2009. He returned on 13 November 2009 and then left again on 29 January 2010.

Emails showed that the parties had some relationship difficulties in early 2010, and on 20 July 2010 the appellant revoked his Will, which had left a life-interest to the respondent, and left him only a bequest of $20,000.

The trial judge found that the emails between the parties demonstrated clearly their commitment to each other and their shared life. It was not until October 2010 that the content of the emails changed

How significant a factor is a sexual relationship?

There are several factors to be considered when determining whether a de facto relationship exists. All factors are considered; no sole factor is seen as conclusive and not all factors need to be present. Therefore, the presence or absence of a sexual relationship is considered but does not, by itself, indicate the existence of a de facto relationship.

For Centrelink purposes, the presence or otherwise of a sexual relationship is taken into account, along with the degree of emotional support and other forms of commitment and interdependence.  Matters which are considered are:

• whether the parties have an ongoing exclusive sexual relationship;

• the duration of the sexual relationship;

• the mutual exclusivity of the parties’ sexual relationship;

• other sexual partners of the parties; and

• whether the parties have a mutual child or children.

The frequency of the parties’ sexual relationship may also be relevant.  If there is no sexual relationship, the reasons for this – especially if there was never a sexual relationship – will be considered.

Brown v Manuel (1996) QCA 65 

This case was not decided under the FLA, but it is still relevant. It demonstrates that the absence of affection was not necessarily incompatible with the existence of a de facto relationship. 

The trial judge found the 18-year relationship between the parties was a de facto one despite the lack of love and affection. They lived together as a couple and had expectations of each other normally found in a marital relationship. Based on the natures of the parties, “it would be unrealistic to look for evidence of manifestations of love or affection” between them. The trial judge described the husband as mean, bitter, ungenerous, and uncharitable “both financially and psychologically”. The wife, for her part, focussed on the financial aspects of the relationship, “directing her social and recreational attention outside the relationship” mainly because of the husband’s antisocial tendencies. It was clear that each of the parties maintained their independence of the other, both financially and socially. 

Basically, the parties lived separate lives but found it convenient to live under the same roof. It was not a relationship built on love and affection, although the wife maintained that they lived as husband and wife.

On appeal to the Court of Appeal of the Supreme Court of Queensland, Davies and Mackenzie JJ (with Helman J dissenting with respect to one of the orders but not with respect to the finding that there was a de facto relationship) agreed that despite the lack of love and affection between the parties for many years (although there had been a sexual component to the relationship and they shared a bedroom), the parties had mutual expectations of each other. These expectations arose out of a commitment to a de facto relationship over a period of eighteen years. The relationship continued on these expectations, with each making financial contributions for their mutual benefit. It was unconscionable to not recognise these expectations.

Jonah & White [2011] FamCA 221

Murphy J held that no de facto relationship existed because the parties had failed to merge their “two lives into one” such that their relationship was not deemed to be a manifestation of “coupledom”. In Murphy J’s opinion:

“the key to that definition [of being in a de facto relationship] is the manifestation of a relationship where the parties have so merged their lives that they were, for all practical purposes, living together as a couple on a genuine domestic basis.”

The parties managed to keep their relationship of seventeen years hidden. They did not socialise publicly as a couple, they kept separate households, they did not combine assets, they did not share expenses, and they maintained property individually. 

The applicant argued that the parties had engaged in a sexual relationship exclusive of others – aside from the respondent maintaining his relationship with his wife and engaging in a few one night stands. The respondent also provided the applicant with some financial support by contributing $24,000 to the applicant’s house and paying her up to $3,000 per month for eleven years.

Despite the presence of a sexual relationship, emotional support and a degree of financial support, the court found that a de facto relationship did not exist because they had led such separate lives.

An appeal, reported at (2012) FLC 93-522, was unsuccessful.

Newland & Rankin [2017] FCCA 210 

The issue was whether or not a casual relationship over a 5 year period was a de facto relationship.

The parties began an intimate relationship in April 2003 and lived together sporadically until 2008. Despite the husband not being solely committed to the wife in the early stages of the relationship, he argued that the parties had been in a de facto relationship since 2003. The wife argued that the de facto relationship only began in 2008 once the husband had become fully committed to their relationship and moved into her home. 

The Court agreed with the wife in finding that the de facto relationship began when they moved in together in 2008. Prior to that, the parties’ relationship was deemed to be intermittent and casual and did not demonstrate the circumstances required to determine the existence of a de facto relationship. Before 2008, they had not purchased any property together, they were not financially interdependent and there was no mutual commitment to a shared life. The Court gave weight to the husband’s rejection of the wife when she fell pregnant in 2007 which resulted in her terminating the pregnancy. This factor, in addition to other factors, lead to the Court finding that a de facto relationship did not exist prior to 2008.

While the existence of a sexual relationship can be an important factor in determining the existence of a de facto relationship, this case shows that other factors may be given greater weight.

Martens & Bocca [2016] FamCA 1044 

The sexual relationship between the parties was not monogamous, but was substantially monogamous. The absence of complete exclusivity did not lead to a conclusion that the relationship was not a de facto relationship.

Public aspects of the relationship

The reputation and public aspects of the relationship are matters to be assessed when determining whether a de facto relationship exists. In determining this, consideration should be given to:

• Whether the parties socialised together;
• Whether the parties were known as a couple to the outside world;
• Whether they attended important functions for the other party;
• Whether they were emergency contacts for each other on certain documents.

This is one of the more important aspects. The legislation and case law does not give it any more importance than any of the other factors, but in practical terms, where the relationship is secret, some of the other factors are less likely to exist, such as a common residence, joint acquisition of property, degree of mutual commitment to a shared life, and care and support of children.

Elias & Elias (1997) FLC 90-267

The Elias principle is referred to frequently in disputes about the existence or length of de facto relationships.

Chisholm J in Jordan & Jordan (1997) FLC 92-736 reformulated the principle as (at p 83,926):

“When a party has made representations of fact to third parties and has gained advantage from doing so, it is open to the Court in subsequent proceedings under s 79 of the Family Law Act to decline to accept from that party evidence which contradicts those representations” [emphasis added]

The Full Court in Crandall & Crandall [2009] FamCAFC 120 said (at 81) that the Elias principle:

“does not represent an inflexible rule – rather, it imparts a discretion permitting the Court to exclude certain evidence”.

Jonah & White (2012) FLC 93-522

The Full Court held that the parties did not have a reputation as a couple as they kept their relationship secret and rarely mixed with each other’s friends. Witnesses were called at trial on the issue. As there were very few public aspects of the relationship, this pointed towards the non-existence of a de facto relationship. 

Asprey & Delamarre [2013] FamCA 214

With regard to the public aspects of the relationship, the Court heard evidence from four friends of Mr Delamarre and extended family. It was well known to each of their families that the parties were a couple. The Court was also presented with various photographs of the parties at family events. It was largely for this reason that the Court found the existence of a de facto relationship. 

Dandridge & Barren (2012) FMCAfam 141

It was common ground that the parties were in a relationship from 2000 to 2009. Ms Dandridge alleged that they were in a de facto relationship while Mr Barren denied this, claiming that the relationship was no more than “boyfriend and girlfriend”. Both parties accepted that they presented themselves publicly as a couple and a family unit with the children they had together. They attended a wedding together and various sporting events. Ms Dandridge, however, displayed through her social media that she was single and open to other sexual relationships.

His Honour noted that the following factors were supportive of a de facto relationship:

• The relationship was approximately 10 years in duration.
• There were two children of the relationship.
• There had been a degree of financial support of Ms Dandridge by Mr Barren. Ms Dandridge also submitted that they consistently and regularly argued over financial matters and this was a relevant factor.
• There was a longstanding sexual relationship. 
• There were some public aspects of the parties as being a “couple”.

The facts which pointed to the opposite conclusion were that:

• Ms Dandridge maintained her own residence throughout the majority of the relationship 
• Ms Dandridge held herself out to Centrelink and the Child Support Agency as being financially independent of Ms Barren.

The court found that there was not a de facto relationship. The applicant’s public statements of social and financial independence, together with her retaining her own residence, were decisive. The public aspects of their relationship supported there being no de facto relationship.

Kazama & Britton [2013] FamCA 4

Ms Kazama asserted that a de facto relationship existed between 9 November 2002 and 9 September 2009. Mr Britton conceded in cross-examination that a de facto relationship existed, but only between 2006 and 2009. Mr Britton sponsored Ms Kazama to move to Australia on a spouse visa. He made representations to the Department of Immigration that the parties had commenced a de facto relationship. The parties were publicly open about their relationship. The children of both parties were aware of it and the parties attended public functions as a couple.

Watts J found that a de facto relationship existed from 2002 to 2009, and gave significant weight to the representations made to the public and the Department of Immigration with regard to the relationship. This finding was made despite the fact that they maintained separate residences.

Martens & Bocca [2016] FamCA 1044 

The public aspects which indicated that the parties’ relationship fell within the definition of de facto were as follows:

• Evidence of text messages whereby they would refer to the other as “hubby” or “partner” was adduced.
• The parties had named each other as the beneficiaries of their Will.
• They attended family functions together.
• They travelled overseas together. 

The Court held there was a de facto relationship, although the parties did not officially live together. 

Cham & Sha [2015] FamCA 355 

Ms Cham and Mr Sha met in 2011 whilst Ms Cham was working at a massage parlour. Mr Sha had been married since 1997 and for most of his relationship with Ms Cham he was still living with his wife. With regard to the public aspects of their relationship, the parties had a social life whereby they frequently visited restaurants, beaches and shopping centres. While they were occasionally accompanied by Ms Cham’s daughter, there was no involvement of other people in these activities. Ms Cham had only limited contact with members of Mr Sha’s family. The Court held that despite this, there were other public aspects to the relationship. This included numerous documents addressed to Mr Sha at Ms Cham’s house, such as electricity accounts for her home which were in their joint names. They also conceived a child through IVF. The Court was satisfied that there was a de facto relationship for approximately 18 months.

Sinclair & Whittaker (2013) FLC 93-551 [2013] FamCAFC

The parties commenced a relationship in 2002 and commenced a sexual relationship in 2003. Mr Sinclair moved into Ms Whittaker’s premises in August 2004. He contributed $600 per month towards her rent. In December 2005, the parties purchased a property together and Mr Sinclair paid the deposit and stamp duty. Ms Whittaker lived in this property and Mr Sinclair usually spent three nights per week there. In December 2006, Mr Sinclair gave Ms Whittaker a diamond ring, which he described as a “promise ring”. The relationship broke down in September 2010.

On appeal, Mr Sinclair denied that there was a de facto relationship from August 2004 until 21 September 2010. One of the grounds of appeal was that the trial judge did not give sufficient weight to representations of Ms Whittaker that she was single. She made representations to the Australian Taxation Office, the Chief Commissioner of State Revenue, a mortgage provider and a financial provider that she was single. The trial judge held that the representations were not determinative, but were part of the circumstances to be taken into account when determining if there was a de facto relationship. 

Agreed with Hayes v Marquis [2008] NSWCA 10 McColl JA said at [99]:

Statements to a government authority apparently inconsistent with a party’s case may complicate the resolution of the issue of the nature of the relationship, but they are not determinative. They are taken into account as part of all the circumstances. The Full Court said (at [66]):

“The fact that such statements are made to lenders or government authorities does not elevate them to a higher status”. 

By contrast to the statements made by Ms Whittaker to Centrelink, Mr Sinclair referred to Ms Whittaker in public as his “partner”, referred to her mother as “mum” and they conducted formal functions and personal milestones, such as Mr Sinclair’s 50th birthday, as a couple.

In Lynam v Director-General of Social Security [1983] FCA 249; (1984) FLC 91-577 said:

Each element of a relationship draws its colour and its significance from the other elements, some of which may point at one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.

The Full Court of the Family Court said in Sinclair & Whittaker (at [65], [98], [100]): 

“65. Given the nature of the definition of a de facto relationship in the Act the ultimate decision as to whether there is a de facto relationship at any given time is a matter for the court and not a matter for the parties. Although their perception of the nature of the relationship is a relevant matter it is not determinative. …

98. It was submitted that the essence of “coupledom”, or the merger of two lives, required a common residence which was submitted to be lacking in this case. For the reasons already given this must be rejected. …
99. …It is true that the parties kept their finances separate, save in relation to the acquisition to the D apartment. The manner in which it was acquired is consistent with there being a de facto relationship, even if it is also consistent with some other relationship in which the parties jointly purchased a property. What is significant and telling is the joint acquisition and shopping for furniture for the D apartment. It is consistent with the acquisition of a home. His Honour concluded that the evidence revealed that the parties displayed a substantial mutual commitment to a shared life. That was a conclusion that was open to him.” 

Mr Sinclair’s appeal was unsuccessful.

To what extent do financial affairs need to be mingled?

The degree of financial dependence or interdependence and arrangements for financial support between parties is a factor to be considered under the legislation when determining if a de facto relationship exists. It has been noted that in “modern relationships” this factor may be less relevant, as more people seek financial independence. Joint bank accounts, for example, are less common. The following should be considered when giving weight to financial affairs in de facto matters:

• Whether the parties have joint bank accounts;
• How the parties met their expenses such as mortgage or rent and living expenses; 
• Whether one party financially supported the other and to what extent;
• Whether the parties acquired property during the relationship, and if so, who paid for it, who owned it and how was the property used?

Jonah & White (2012) FLC 93-522

The parties maintained no joint bank account, engaged in no joint investments together, and only acquired/maintained property in their own individual names. There were, however, regular monthly payments of up to $2,500 made to Ms Jonah from Mr White for approximately 11 years. Mr White also contributed a one off payment of $24,000 to Ms Jonah for a deposit on her home.

Despite this, it was held by the trial judge and upheld by the Full Court that the parties were not in a de facto relationship, largely because of the lack of public aspects to the relationship. However, the trial judge highlighted that the financial aspects of the relationship supported the finding of a de facto relationship. 

Regan & Walsh (2014) FLC 96-614

On most matters about their relationship the parties disagreed, except that there had been a sexual relationship. The applicant, Mr Regan, asserted that there was a joint bank account, although he was unable to produce any evidence to support this. Mr Regan made some minimal payments which were attributed towards groceries or other household items, and the court found that Mr Regan used Mr Walsh’s stronger financial position for his own interests and Mr Walsh was unable or unwilling to resist the demands. This was the extent of co-mingling of their financial affairs. The Court highlighted that evidence of a jointly opened bank account would have been a significant matter. The parties were held not to be in a de facto relationship. 

Asprey & Delamarre [2013] FamCA 214

The trial judge viewed the parties’ relationship as one of a “modern relationship” where financial independence is not uncommon. Because of this, she accorded less weight to the financial circumstances. The parties had no financial dependency on the other and both maintained separate bank accounts. They each purchased properties in their own name, but did not acquire any property in joint names. Cleary J said (at para 75):

“Such financial independence is not uncommon in modern relationships, including marriages. I do not consider this aspect inconsistent with life as a couple living together on a genuine domestic basis.”

Nevertheless, the Court was convinced that the parties were in a de facto relationship because, in the words used by Murphy J in Jonah & White, there was a “… merger of two lives into coupledom”.  On appeal, the Full Court in Delamarre & Asprey [2014] FamCAFC 218 agreed with the above passage and dismissed the appeal other than to amend the dates of the relationship in the s 90RD declaration.

Luk & Choy [2016] FamCA 534

Ms Luk and Mr Choy met through an internet dating website. Mr Choy lived in China and travelled to Australia to meet Ms Luk. The parties were in a relationship from July 2012 to February 2014. Ms Luk asserted that this was a de facto relationship, while Mr Choy argued that it was not. 

Mr Choy purchased Ms Luk a watch and handbag costing over $10,000 and an engagement ring for approximately $30,000. The parties purchased a property together. Mr Choy paid the deposit and the parties obtained a joint mortgage. Ms Luk lived in the property. She paid the mortgage instalments and other outgoings. Mr Choy gave Ms Luk a credit card which she used for a period of time. There was an argument about use of this credit card and Ms Luk returned the sum in dispute and the credit card to Mr Choy. The Court was not satisfied that the parties were in a de facto relationship, largely due to the lack of public aspects to the relationship and that they only stayed together for periods totalling a fraction of the duration of their relationship.

Later stage relationships – when are they de facto relationships?

In the context of personal relationships between elderly parties, the main issue is distinguishing relationships between that of a carer and friend from that of a de facto couple. The issues may be more fraught where there is a stark age difference between the parties. Allegations of elder abuse may be made. While little case law is available in relation to parties of advanced years, the following cases illustrate the issues which may arise. 

Dobbins & Gibbs [2011] FMCAfam 35

Both parties were aged 87 at the time of hearing. The applicant, Mr Dobbins, passed away after the first day of trial and the proceedings were delayed pending the appointment of a legal personal representative. Mr Dobbins contended that a de facto relationship existed for a period of 16 years. The respondent, Ms Gibbs, said the relationship was nothing more than a friendship and that, particularly in the later years, Ms Gibbs was more or less a carer for Mr Dobbins, he being legally blind and in need of constant assistance. The parties lived together for about 15-16 years. 

The court held that a de facto relationship was established on the evidence before it and made a declaration of the existence of a de facto relationship pursuant to s 90RD. Weight was given to:

1. The public aspects of the relationship: Mr Dobbins’ estate called on evidence from various third parties who were close to the parties as to their view of the relationship. One witness gave evidence that he spent regular time at the parties’ residence, including staying overnight when travelling from interstate and that the parties slept in the same bed when he was there. Mr Dobbins’ estate also called evidence from Mr Dobbins’ neighbour, his grandson and a friend of the family – all giving evidence of their view of the relationship. The court gave considerable weight to the evidence that publicly the parties held themselves to be an intimate relationship.
2. The existence of an intimate relationship: there was evidence to suggest that at one point or another a sexual encounter occurred. It was Mr Dobbins’ position that for the first 6 or so years of their relationship, a normal intimate relationship existed and thereafter by reason of the encroaching years, there was a change. It was Ms Gibbs’ position that despite sharing the same bed, there was no intimacy save for one sexual encounter when she moved in. The court held that the presence or absence of a sexual relationship was not determinative of the issue but, on the balance of the evidence, there was some degree of intimacy. 
3. The extent of common residence: it was not disputed that the parties lived together in Mr Dobbins’ property. However, Ms Gibbs contended that the relationship was one of that boarder and landlord. On the evidence of shared expenses, sleeping in the same bed and third parties, the court held that it was not a relationship of landlord and boarder, or friends.
4. The degree of mutual commitment to a shared life: the court accepted the evidence on behalf of Mr Dobbins that there was a degree of commitment to a shared life together, despite Ms Gibbs’ assertions that the relationship was either that of a boarder or a carer relationship.
5. The degree of intermingling of financial affairs: Ms Gibbs contended that in relation to the question of the ownership, use and acquisition of property jointly acquired or owned, the parties maintained separate properties aside from the common residence. It was clear that Ms Gibbs always had the intention to keep it that way in anticipation of any entitlements that might arise from her Will.

On the balance of the available evidence, the court held that while the relationship may not have been one reflecting that of a younger couple, from Mr Dobbins’ perspective and certainly for all the third parties, there was a significant relationship appropriately described as a de facto relationship.  

The court then turned to determining the application under s 90SM. It found that the parties contributed equally in terms of non-financial contributions and Ms Gibbs made greater financial contributions. The s 90SF(3) factors were heavily weighted in favour of Ms Gibbs, due to Mr Dobbins’ death. The court decided that a division of 85% in favour of Ms Gibbs and 15% in favour of the estate of the late Mr Dobbins was just and equitable. If Mr Dobbins had not passed away, the division would have been 80% / 20%. Following Van der Linden & Kordell [2010] FamCAFC 157, the court considered that some s 90SF(3) adjustment was necessary in favour of Ms Gibbs, but not so as to completely erode the recognition of Mr Dobbins’ contributions.

The case raises interesting implications of relationships in later stages of life, where the relationship can be construed as that of either a carer or friendship or a de facto relationship.  However, the case ultimately adheres to the relevant factors as defined by the Act and expanded by case law.

Alternatively, if the parties were unable to establish a de facto relationship, relief may be sought from state courts under equitable principles – namely estoppel by representation or promissory estoppel if one party cared for the other to their detriment on the expectation of receiving an interest under a will either by a representation made by the second party or express promise to do so.

Teh & Muir [2017] FamCA 138

The applicant was 37 and the respondent was 86 at the time of trial. The respondent’s case was run by his case guardian, as the respondent suffered from dementia.

Although the applicant lived in the respondent’s home, there was very little other evidence to support the existence of a de facto relationship.

Berman J found that the applicant had taken financial advantage of the respondent’s deteriorating mental state and infirmity, and had neglected the respondent and not provided the homemaking contributions she alleged she made. He found that there was no de facto relationship.

Can more than one de facto relationship exist at the same time?

It is possible that more than one de facto relationship can be in existence at the same time. Section 4AA(5)(b) of the FLA states that a de facto relationship can exist, even if one person is legally married or in a de facto relationship with another person. In fact, there have been numerous cases in which one or both parties are in other relationships at the same time as they were in a de facto relationship with each other. In Dakin & Sansbury [2010] FMCAfam 628, Bender J followed Riethmuller FM in Baker & London [2010] FMCAfam 280 and said (at para 50):

“The definition of de facto relationship…does not require exclusivity and makes it clear that such relationship can be established even if one or other of the parties is married or in another de facto relationship”. 

Whether one or both of the parties are in another relationship can impact upon considering the degree of mutual commitment to a shared life between the parties, but it is not, on its own, a determinative factor. 

Jonah & White (2012) FLC 93-522

This case involved a 17 year relationship in which Mr White was married and remained living with his wife and children. The court found that the parties were not in a de facto relationship, but for reasons other than because Mr White was in another relationship. 

Cham & Sha [2015] FamCA 355)

Mr Sha was in a marriage of 14 years at the time of commencing a relationship with Ms Cham. In 2012 Mr Sha admitted his relationship with Ms Cham to his wife. He said that he did not want to ruin his marriage so stayed at home as much as possible for a few weeks. During this time, he only visited Ms Cham a couple of times per week, but did not stay overnight. Ms Cham asked him on multiple occasions to divorce his wife but said it appeared that he did not want to do so.

It was held that the parties were in a de facto relationship. In fact, the court held that Mr Sha demonstrated a desire to have both a relationship with Ms Cham and his wife. Johnston J said “his behaviour demonstrated considerable effort by him in endeavouring to maintain both relationships”. 

Na & Tiu [2017] FamCA 282

It was common ground the parties enjoyed a sexually intimate relationship for a number of years, which commenced in or about late 2005 and ended in early 2012, but they each perceived the relationship differently. The applicant honestly felt he and the respondent were a couple living together on a genuine domestic basis, whereas the respondent did not have the same degree of emotional investment in the relationship. She considered they were only boyfriend and girlfriend.

Austin J found (at para 35):

“In this case, as in most, the weight of the evidence was not all one way. Some aspects of the evidence tended to support the applicant’s contention that a de facto relationship existed: in particular, the sexuality of their relationship, the regularity of their personal interaction over some six years, their joint holidays, and the modest degree to which they used their own money for the benefit of the other. However, the preponderance of evidence did not support the applicant’s contention the parties lived together as a couple on a genuine domestic basis because, in summary:

(a) The respondent demanded secrecy about the sexual nature of the parties’ relationship from start to finish….

(b) The respondent maintained her relationship with her husband, to whom she was and still is married. Although their personal relationship may be enigmatic and difficult to define, they maintain relations on several different levels – sexual, domestic, and commercial. They still associate, with and without their children, in both Australia and China. They still jointly conduct their business in both Australia and China. The marriage is not an empty shell. 

(c) The parties never shared a common household. They associated during daylight hours at their respective homes on occasions during the week, when they would not be disturbed by the respondent’s children. They only ever stayed overnight together when the children were not with the respondent, either because they were visiting their father and relatives in China during school holidays or they were away from the respondent’s home for some other unusual reason….

(d) At no stage of the relationship did the parties ever jointly acquire property and, although from time to time they each used their money for the benefit of the other, they did not combine their resources in a concerted effort to mutually improve their financial fortunes. It was notable how the parties’ investments and the respondent’s business interests remained segregated.”

The appropriate manner to dispose of the dispute was to declare, consistently with the evidence, that the parties were never in a de facto relationship, as permitted by the Act (s 90RD(1)) rather than declare that no de facto relationship existed between specific dates.

Somers & Collier [2017] FamCAFC 123

The Full Court upheld a finding that there was no de facto relationship. The parties commenced dating in August 1998 and their relationship continued until late 2012. The appellant lived in the respondent’s home between May 2011 and March 2013. The parties attended social and family events as a couple over many years and were known to some family and friends as a couple. The parties had a sexual and romantic monogamous relationship. It was common ground that neither party referred to the other as a partner in any third party notification, such as their tax returns and the respondent’s health insurance.

The trial judge found that the evidence did not demonstrate that the parties had mutually committed to a future shared life together. They had a mutually satisfying relationship. Whilst the appellant may have hoped for a more lasting commitment from the respondent when he moved into her home, after a few positive weeks the respondent pulled back and insisted on him sleeping separately.

Determining the start and end of the relationship – evidence

Paul Doolan and Justice Altobelli in a paper entitled “De Facto Financial Proceedings – Where have all the Mistresses and Toy Boys Gone?” set out the following useful list of evidence which can help establish the existence, as well as commencement and end dates, of a de facto relationship: 

The duration of the relationship 

• Direct evidence from the parties; 
• Evidence from acquaintances who can give direct evidence about the start and end point of the relationship; 
• Documents that might prove the duration of the relationship (eg: letters, emails, text messages, cards, phone records, social networking entries on websites); 
• Evidence about change to sleeping arrangements or separate bedrooms; 
• Evidence of the end of counselling, or statements made in the course of non-confidential counselling or therapy sessions about the end of the relationship or start of a relationship; 
• Income tax returns making declarations as to a spouse or de facto spouse;
• Centrelink records;
• Diary notes.

The nature and extent of their common residence: 

• Direct evidence from the parties; 
• Direct evidence from friends or family; 
• Title records; 
• Rental records; 
• Bank records in relation to payments towards mortgages or rent; 
• Drivers’ licences showing address; 
• Electoral roll records; 
• Taxation records as to address (if any); 
• Employment records as to address;
• Telephone records; 
• Mailing address for official documents for parties from financial institutions, medical practitioners, government agencies; 
• Whether a party had rented out or subleased other premises owned by them; 
• Road toll records and parking records which may show residence predominantly in one place or another, or the extent of residence in one particular place. 

Whether a sexual relationship exists: 

• Presumably only from direct evidence from the parties, unless some record of such matters otherwise exists. 

The degree of financial dependence or interdependence, and any arrangements for financial support between them: 

• Banking records of any joint accounts or regular deposits to the account of the other party; 
• Any employee records showing salary records being paid into joint accounts or  partly into the account of another partner;  
• Credit card statements, whether for joint credit cards or for secondary holders; 
• Evidence in relation to payment of mortgage and household outgoings; 
• Payments for mutual activities such as entertainment, holidays, restaurants; 
• Payment of debts or liabilities of the other party; 
• Distributions of income from a trust to a de facto spouse; 
• Evidence of provision of personal guarantees or indemnities to assist the other party in borrowings or operation of a business; 
• Declarations to taxation authorities or financial institutions in relation to the existence of a partner or de facto spouse;
• Insurance records. 

The ownership, use and acquisition of their property: 

• Title records; 
• Lawyers’ files in relation to purchase of property or other assets; 
• Transfer of property from sole name to joint names; 
• Evidence of financial contributions to property owned by the other party; 
• Financial records and bank statements. 

The degree of mutual commitment to a shared life: 

• Direct evidence from each party; 
• Observations of friends and family about attendance at major events in the life of each party or attending other family events; 
• Registration of relationship; 
• Evidence of an engagement or a request to marry; 
• Purchase of a ring; 
• Description of a person as a de facto spouse or next of kin or contact person on school records, employer records etc; 
• Contents of a Will that may name the other party as executor or primary beneficiary; 
• Contents of insurance policy that may name a person as a beneficiary; 
• Nominated beneficiaries under a superannuation benefit;
• Evidence of household or other activities undertaken by each party for the benefit of the other or mutually;
• Medicare or private health insurance records in relation to who is covered under a particular card. 

Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship: 

• Official records. 

The care and support of children: 

• Birth certificates; 
• Financial and banking records in relation to payments; 
• Cheque butts; 
• Other evidence of financial payments for school fees, extra curricular activities, medical expenses; 
• Records from schools or kindergarten/day care about responsible adults authorised to drop off and collect children from a centre. 

The reputation and public aspects of the relationship: 

• Social security records/Centrelink records (eg: sole parent/single person claims); 
• Direct evidence of the parties; 
• Evidence from family and friends; 
• Evidence in respect of adoption of a single family name of one party; 
• School records, medical records, insurance records, taxation records in relation to description of the other party as being a partner or de facto spouse. 

Documents are obviously very valuable as evidence; however, it is surprising how often a document can be ambiguous. People may use different addresses for different purposes. There may be another explanation for the document’s existence than the one that a lawyer or a client may think is obvious. Relationships can be volatile and people will not always promptly change their address. There is also the problem that Government records may be covered by privacy provisions and therefore not obtainable under subpoena e.g. Centrelink, Tax Office, State Revenue Office.

The applicability of the Elias principle also needs to be considered – at least to the extent that the client may be giving evidence which contradicts statements made to Government authorities or elsewhere. The client’s credit may be in issue.

The reported cases about whether a de facto relationship existed and when it commenced and ended have generally been costly to run and often last several days with lengthy and numerous affidavits and exhibits. Delays in listing interim hearings in the courts exacerbate the problem and increase costs. Parties can wait 12 months or more for the jurisdictional issue to be heard and determined, and still be 12 months or more away from a final hearing. 

Conclusion

The most important tip is to read the Family Law Act carefully, always check that the jurisdiction hurdles are met, and if they are met, apply the usual process for determining a property settlement or spousal maintenance claim by using the precise wording of the sections of Pt VIIIAB.

In determining whether a de facto relationship exists and, if so, when it started and ended, it is important to look at all the factors. No particular factor carries more weight than any other. Whilst the fact of cohabitation may appear at first glance to be a powerful indicator, the case law shows that parties can be in a relationship and living under the one roof but not be in a de facto relationship, and they can be in a de facto relationship although not living under the one roof.

© Copyright – Jacqueline Campbell of Forte Family Lawyers and Wolters Kluwer/CCH.  This paper uses some material written for publication in Wolters Kluwer/CCH Australian Family Law and Practice.  The material is used with the kind permission of Wolters Kluwer/CCH.