De Facto Relationships – A Sexual Relationship Does Not Always Prove A De Facto Relationship

01/09/2017

Since March 2009 property division between parties to a de facto relationship has been dealt with by the Family Court of Australia and the Federal Circuit Court of Australia.  This also applies to same sex relationships.

The Family Law Act 1975 has jurisdiction to make Orders for adjustment of property and property division and spousal maintenance when there is a de facto relationship.  The Act defines a de facto relationship as one where:-

  1. Persons are not legally married to each other.
  2. The persons are not related by family.
  3. Having regard to all of the circumstances of the relationship, they have a relationship as a couple living together on a genuine domestic basis.

There will only be a de facto relationship if the parties live together on a genuine domestic basis. 

From time to time factual issues arise as to what “living together” means.  In some cases, the parties to what is said to be the de facto relationship will each have their own home but spend time in the home of the other.  The issues in relation to the length of time spent in the respective households and the nature of the relationship including whether or not it is a sexual relationship are examined by the Court.

A de facto relationship must be of two (2) years duration and must take place within one of the States of Australia.  In considering whether or not a de facto relationship exists, the Court will look at the nature of the relationship and give regard to whether or not there is a child of the relationship and whether or not there has been substantial financial contribution by one party to the relationship to the acquisition, maintenance and improvement of property.

The situation is not always clear.

The Federal Circuit Court of Australia in the recent case of Newland and Rankin declined to make an Order dividing property.  In that case the Applicant male asserted that he had been in a de facto relationship with the Respondent female for a period of seven years.  The Respondent said that they were friends who enjoyed a casual sexual relationship for five years.  In that case the Respondent lived with her former husband and children for two of those years.

The Court examined the circumstances of the relationship and the Court found that the only evidence supporting the proposition that there was a de facto relationship was the fact that the Applicant nominated the Respondent as the beneficiary of his superannuation fund.

The Court found that they had kept their finances separate but that the Applicant had made no contribution to the Respondent’s accounts.  The Court found that the parties had kept their assets separately and that for the whole of the relationship where the parties did live under the same roof, the Applicant paid no rent.

In all the circumstances the Court declined to find that there was a de facto relationship and did not make any Order for property division or spousal maintenance.  Each matter will need to be examined and addressed on its own merits and individual facts.

Watson & Watson regularly conduct de facto property settlements for Applicant’s and Respondent’s and provide up to date advice in relation to the procedure for obtaining property division and the likely outcomes of that division.

If you are in such a relationship and have any concerns or queries in relation to what defines a de facto relationship please do not hesitate to contact Richard Watson our family law solicitor or his assistance Shereen Da Gloria to discuss your concerns.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.

Personal Experienced Professional Affordable

Phone 02 9221 6011

Send us your enquiry
Book an appointment Request a quote Send your question
Online enquiry form

Watson & Watson are always available to provide expert legal advice and answer any questions you may have.

All enquiries received will be responded to within 24 hours.

Call: 02 9221 6011