Some are of the view that they are better off living with their loved one without marrying, because they don’t need a ceremony or a piece of paper to define their love for their partner. There are many couples who live a long and happy life together without being married. In simple terms, this is called a de-facto relationship.
There are some though who believe they are in a de facto relationship with another person, when at law, they are not for the purposes of seeking a property settlement. Usually this becomes apparent upon separation and can sometimes come as quite a shock to people.
In recent times, the status of a relationship as a de facto relationship where a property settlement can be sought has become somewhat blurred. Are the parties in a de facto relationship at all and if they are, should the property of the parties be divided?
In 2016 the Court found that a same sex couple who lived together for 27 years as a de facto couple did not require a property division. In this case whilst the parties had a long standing relationship, they did not intermingle their finances nor did they have a joint bank account. Both parties purchased property, but they did so in their sole names and remained responsible for their own debts. The Court held here that it was appropriate that the parties retain the property held in their own names, despite at the time of separation one party being in a better financial position that the other.
In 2015 a couple who were perceived to have married and have a child together, were not found to be in de facto relationship. Here the parties participated in a wedding ceremony in Ethiopia, but the de facto husband argued that he had stepped in to help the de facto wife “save face” as her real fiancé stood her up at the wedding ceremony. Less than two weeks later the de facto wife discovered she was pregnant. The de facto wife gave evidence that she thought the parties would have a proper wedding ceremony in Australia, had a sexual relationship and had a commitment to share a life together. The de facto husband gave evidence that there was no commitment to share a life together and that they were merely friends who shared a child. Evidence was produced that the de facto wife was receiving a single parent pension. As the Court found that there was no de facto relationship, there was no property settlement between the parties.
Recently there was a decision that involved a fly in fly out worker. The fly in fly out worker argued that she would stay with her “friend” for 6 weeks, then return home to her children in another town for 2 weeks. When staying with her “friend” she would perform the housekeeping duties and assist him with managing his money. The “friend” asserted that there was a sexual relationship between the parties, they shared in overseas travel though they stayed in different rooms and they shared their finances. Ultimately, the Court found that a de facto relationship existed, however ordered that it ended in 2010, despite the “friend’ claiming it ended in 2014, which lead to his Application for a property settlement being out of time. The Court found that the “friend” would suffer hardship if he were not granted leave to seek a property settlement.
More interestingly with the fly in fly out worker case is that the Court of Appeal who heard the matter on appeal suggested that based on the facts another judge may have come to a different view, in that there was not a de facto relationship, rather the parties were just friends
As demonstrated above each relationship is different and the outcome can in some cases be very different to what a party believes.
If you were or believe you were in a de facto relationship that has broken down see our dedicated family law team to examine whether your relationship was a de facto relationship that may give rise to a division of property.