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Could You be in a De Facto Relationship and Not Know it?

Whilst most people know if they are married or not (most married couples can recall the whole white dress, overpriced food and big party event that often accompanies a wedding) in some circumstances it can be unclear as to if someone is actually in a de facto relationship.

The relevant legislation in the Family Law Act 1975 section 4AA says that a person is in a de facto relationship if with another person if:

  • the persons are not legally married to each other; and
  • the persons are not related by family and
  • having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Relevant circumstances that can assist in working out if two persons have a relationship as a couple may include any or all of the following:

  • the duration of the relationship;
  • the nature and extent of their common residence;
  • whether a sexual relationship exists;
  • the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
  • the ownership, use and acquisition of their property;
  • the degree of mutual commitment to a shared life;
  • whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
  • the care and support of children;
  • the reputation and public aspects of the relationship.

A de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex. Also a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

Why it matters to work out if you were in a de facto relationship with another person, is that if you were in a de facto relationship and certain other conditions were met (such as living together for more than 2 years, having a child together or mingling finances) then this means if you do separate your former partner or you could seek a property adjustment from the Court in a similar fashion as if you were married.

Importantly in the case of Jonah and White [2011] FamCA 221 (4 April 2011) Justice Murphy commented that the fact that one can be legally married and also in a de facto relationship means that “it must follow that it is feasible that the subject relationship might involve the parties living together for no more than half of the time of that relationship. Further there is nothing to suggest that it must be even as much as half of that time”.

The case of Spencer & Speight [2014] FamCA 436 demonstrates it is possible for parties to not agree if they are even in a de facto relationship.

The case also shows that a de facto relationship can exist when there has been no sexual intercourse. This case also shows that in some cases even if the de facto relationship has been less than 2 years the Court can find it appropriate to make orders for a property adjustment.

In this case, Mr Spencer sought that his former partner Ms Speight, pay him $90,000 by way of a property adjustment following what he asserted was a de facto relationship from February 2012 to June 2013 during which he paid $142,000 to Ms Speight’s mortgage.

Ms Speight denied that she and Mr Spencer had a de facto relationship and argued that in her view the $142,000 was for driving services provided when Mr Spencer’s licence was suspended for 6 months. She produced a letter with electronic signature stating Mr Spencer would pay $500 a day ($91,000 in total) for driving services. However the Court rejected the document partly due to the fact that various incarnations of the document had been inconsistent during the trial.

It was agreed the parties shared the same home and bed from November 2012 to June 2013. The Court found the relationship commenced February 2012, when Mr Spencer changed coffee drinking and sports habits to be closer to Ms Speight’s home due to spending increasing amounts of time there.

Again the parties had highly different perspectives about if a sexual relationship existed. Mr Spencer alleged a sexual relationship from June 2011 to June 2013 and Ms Speight asserted sexual intercourse never occurred due to Mr Spencer’s “health difficulties. The Court in this case made no finding as to if sexual intercourse occurred but found an “intimate relationship” existed as the parties at least had tried to have sexual intercourse, shared the same bed for months and displayed physical affection.

His Honour commented generally that “sexual relationship” in the Family Law Act has a “wider meaning than just sexual intercourse and sexual relations” and “intimate relationships between couples can be many and varied and do not need to include physical sexual intercourse to fall within the definition of a sexual relationship…each case will be determined on its own facts”.

Also relevant, the Court found in this case that Mr Spencer’s contribution of $142,000 was financial support of Ms Speight and that the parties’ relationship had a public aspect.

The Court found that $142,000, being almost all of Mr Spencer’s non superannuation assets, was a substantial contribution because it was more than “usual or ordinary” and if they did not make an order this would create serious injustice to him. Because the relationship was less than 2 years (even on Mr Spencer’s version of events) in order to make a property adjustment the Court needed to find that he had made a substantial contribution and that there would be injustice if they did not make an adjustment.

The Court found in the context of all contributions, including that Mr Spencer resided in Ms Speight’s home, $75,000, not $90,000, should be repaid to him.

This case is interesting as it explores the boundaries of what the average person might consider a “de facto” relationship. The relationship was relatively brief, and the couple may not even have had sexual intercourse, yet they were found to be in a de facto relationship.

I also think the case is interesting as it highlights the different ways two people in the very same relationship can perceive that relationship differently. Perhaps to Ms Speight, Mr Spencer was simply visiting her for some romance on the way to pick up his coffee and play sport, whilst she provided him with driving services. However to Mr Spencer this was a de facto relationship.

It also acts as a warning to other couples who may consider themselves in a “light” relationship rather than a de facto relationship that a property adjustment can be ordered by the Court even in short relationships.

If you have any questions about de facto relationships, including if you would like further advice about if you would be considered to be in a de facto relationship then please contact us at Armstrong Legal.

Image Credit – Rido ©

Written by Peter Magee on July 12, 2017

Peter is a partner of Armstrong Legal and head of our Family Law Division. He has over 15 years’ experience. His past experience dealing with large cases benefits his family law clients by providing insight into complex and tactical issues. As a result, Peter can often achieve settlements outside Court that may otherwise have not been achievable. View Peter’s profile

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