27 Sep Are We in a De Facto Relationship?

by Michael Benedetti, Senior Associate

To the most of us, the above question wouldn’t be a very hard to answer. However, in the world of online dating, casual flings and open relationships that question can become a whole lot harder to answer.

For family lawyers, under the Family Law Act a de facto relationship exists where the persons involved:

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

The definition above means that the Court can ultimately make a finding about whether a de facto relationship exists at any given time, regardless of the perception of the persons involved – though their perception is a relevant consideration.

In the case of Weldon & Levitt, the Court looked at whether two parties were in a de facto relationship where they had an intermittent sexual relationship for 13 years between 2001 and 2014 and had 2 children together.

The Applicant, in that case, alleged that a de facto relationship existed, whilst the Respondent denied this to be the case, saying the parties were on-and-off boyfriend and girlfriend.

Other salient features of the ‘relationship’ were as follows:

1. the Respondent had been in receipt of Centrelink benefits for the duration of the alleged relationship and never indicated to Centrelink that she was in a de facto relationship during that time;
2. in 2004, the Respondent applied for a Child Support Assessment and was continuously registered for assessment from that date until the time of the hearing;
3. in 2014, the Police took out an Application for a Protection Order on behalf of the Respondent against the Applicant and therein the Respondent describes the Applicant as her former de facto partner, however, claimed during the hearing that she merely said that because she thought that’s what parties who are not married and have children are called. She was unrepresented at the trial and did not therefore receive legal advice in this regard.
4. The parties shared a house for a total of less than a year divided into 3 distinct periods in the 16 years they had known each other.

The Court ultimately found that no de facto relationship existed because:

1. The Applicant never challenged the Respondent obtaining a Child Support Assessment thereby implying that the parties were separated;
2. The Judge accepted that the Respondent described her relationship with the Applicant as de facto because she did not fully understand the meaning of this terminology – a term, the Judge said, “which is difficult for family lawyers to apply, much less lay people”;
3. The Applicant had made no contributions to the properties owned by the Respondent; and
4. The parties only lived together for short periods of time as boyfriend and girlfriend.

This is yet another case that shows how establishing the existence of a de facto relationship can be a tricky exercise and it is always recommended that you seek the advice of a competent family lawyer to know where you stand on this issue.

Call Fedorov Lawyers now to book your appointment to find out where you stand.