Not all Relationships are De facto Relationships

30/06/2017

Often we receive enquiries at Watson & Watson as to whether a relationship amounts to a de facto relationship.  The question as to whether a relationship is a de facto relationship under the Family Law Act is one that is determined based on the factual matters and having regard to the factual matters the law is applied to determine whether there is a de facto relation subject to the Family Law Act.

There is no one factor that determines this question.

In most cases when we consider the factual matrix of the relationship it is very clear whether the relationship was a de facto relationship or was not a de facto relationship.  However there are many circumstances which arise where there is a question to be considered as to whether the relationship was a de facto relationship which could be subject to proceedings under the Family Law Act.

One single factor will not determine this issue.

Recently in a particular matter where there was a “one night stand” sexual relationship between the parties on numerous occasion we advised the father who was our client that it did not amount to a de facto relationship.  In that particular case there was a child born to the relationship.  This of itself did not determine that the relationship was a de facto relationship which could be the subject of a claim under the Family Law Act.  As it happened when it was asserted by us to the mother of the child having regard to the factual matters there was no de facto relationship the mother of the child did not pursue the matter any further.

However the father is responsible for payment of child support which does not require there to be a de facto relationship.

In a recent case decided earlier in 2017 the Federal Circuit Court of Australia considered whether a relationship which was for a period commencing March 2003 and ending 2011 was a de facto relationship.   The Court after considering the factual matters determined that there was a de facto relationship from April/May 2008 to April 2010.

The decision by the Court as to a limited period of a de facto relationship was even though the Court decided that the parties enjoyed a friendship from March 2003 to the end of 2011 including between March 2003 and early 2008 (when the de facto relationship commenced) was an intermittent casual sexual relationship.  It was decided by the Court that the relationship from March 2003 to early 2008 did not amount to a de facto relationship within the meaning of the Family Law Act.

It was on the basis that during the period before 2008 the parties had not shared financial support, acquired property and importantly there was no mutual commitment to a shared life.  The parties were good friends, enjoyed each other’s company and provided practical and emotional support to each other when sought.

After May 2008 the relationship changed and it was on the basis of the factual matters thereafter that the Court decided that there was a de facto relationship from May 2008 until 2011.

The Court eventually held that the de facto relationship was a short relationship and the Court dealt with the applicant’s claim for property on that basis.

In a relationship either a de facto relationship or a marriage for a short period of time the financial contributions are a major factor taken into consideration in determining the appropriate allocation of the property on the breakdown of the de facto relationship or marriage.

In the end in the recent case in 2017 the Court after considering the question of the de facto relationship considered whether there should be a property adjustment in favour of the Applicant.  The Court did not make a property order in favour of the Applicant and found that there were no appropriate circumstances for making a property order in favour of the Applicant.  The Court ordered that each party keep their own property assets held by them separately.

Please do not hesitate to contact Richard Watson, our experienced family lawyer or his assistant Shereen Da Gloria if you are considering ending or are at the end of a de facto relationship and are unsure as to your rights and entitlements.  We can provide legal advice and a way forward which can assist you during this uncertain and difficult time.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.

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