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
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