De Facto or Simply Close Friends

We aim to deliver Just, Redemptive Outcomes®

Family Law De Facto Relationship
In Australia, couples who live together on a genuine domestic basis are entitled to apply to the Court for a property settlement following separation. However, unlike a marriage, a de facto relationship may be more difficult to establish if the parties disagree about the existence of a de facto relationship or its duration.

To determine whether a genuine domestic relationship exists, a number of factors should be considered under the Family Law Act 1975 in section 4AA such as:

  • the duration of the relationship;
  • how the parties lived together;
  • the nature of the relationship including whether a sexual relationship existed;
  • the financial interdependence and degree of ownership, use and acquisition of property;
  • the degree of mutual commitment shared in various aspects of life including:
    • domestic duties,
    • whether there is a child involved in the relationship; and
    • the approach to acquisition and ownership of property.
  • presentation and reputation in public; and
  • whether the relationship has been registered under any State or Territory laws.

However, sometimes what seems to be a de facto relationship will not satisfy the requirements of the law and will not be recognised as a de facto relationship by the Court.

In Regan & Walsh, the Federal Circuit Court of Australia, declined to recognize the relationship between the parties as de facto despite the existence of several characteristics of a de facto relationship. Judge Coker found that there was insufficient evidence to establish a de facto relationship did in fact exist.

In this case, the parties were a male couple aged 53 and 41. They met in 2005 and commenced a sexual relationship, living together for approximately 8 years.

Following the breakdown of the relationship Regan brought an application in the Federal Circuit Court of Australia in Townsville for property settlement and sought a declaration that the couple had been in a de facto relationship.

During the hearing it was claimed by Regan that a de facto relationship existed because the couple had lived together, shared household duties and a sexual relationship.

From the perspective of Walsh, however, as he described it on a number of occasions, the relationship was of friends with benefits. He described Regan as a friend with whom he had a sexual relationship at different times. He was adamant that there was no relationship which could be considered one of a genuine domestic character.

Interestingly, the primary issues that ultimately led the Court to make the declaration were:

  • There was a lack of financial interdependence:
    • Regan had made minimal contributions to the household expenses and “perhaps in relation to groceries” only;
    • Walsh was in a significantly stronger financial position having a substantial investment portfolio following a previous marriage;
    • There appeared to be no arrangement or agreements in relation to financial support; and
    • Walsh was able to establish a clear intention to independently protect his assets for his children.
  • The ownership and acquisition of property was not indicative of mutual commitment or financial interdependence, but evidence of the maintaining separation in financial resources and assets.
  • The parties showed vastly differing levels of commitment to a shared life in relation to:
    • Family gatherings and important occasions;
    • The degree of fidelity displayed between the parties; and
    • The lack of circumstances evidencing an exclusive relationship.
  • Regan was unable to adequately establish a reputation among peers or the public aspects of the relationship.

Unfortunately for Regan, the Court did not consider a relationship that could better be described as “friends with benefits” a de facto relationship under the Family Law Act 1975.

Importantly, the case demonstrates that a de facto relationship requires more than a long term sexual relationship.

The decision sets clearer boundaries for couples in relation to their right to seek a property settlement from the Court.

Finally, the case makes a clear distinction between a mere relationship of convenience and that of a de facto couple.

For more information regarding de facto relationships

Please do not hesitate to contact our Business Development Team on:

(07) 3252 0011 to arrange an appointment with one of our family lawyers.