Summary

Under Australian Law, separating or separated de facto couples have substantially the same rights and responsibilities as those of married couples with regard to property settlements, claims for spousal maintenance, and superannuation “splits”. However, determining whether a "de facto relationship" existed requires the Court to assess many factors including intimate, personal, and private details of the lives of the couple.

In this article we look at a recent court case that highlights that a couple does not necessarily need to live together to be in a de facto relationship and a number of other factors may be taken into account.

The rights of de facto couples

Since March 2009, the Family Law Act 1975 (Cth) (Act) has given the Family Court power to deal with property and maintenance matters upon the breakdown of a de facto relationship. The Act now provides that after the breakdown of a de facto relationship, the court may adjust the property interests of de facto partners in the same way as they would for a married couple.

However, unlike matters involving a married couple where the marriage certificate evidences the relationship, property claims involving de facto relationships can be difficult to establish because the nature of the relationship is harder to define.

It is not always a simple task to determine whether a couple had been in a relationship or a de facto relationship. One of the principal purposes of the introduction of the Act was to avoid the unwelcome and invasive enquiry from a court as to whether one person's fault in the marriage breakdown made it sufficient to grant a divorce. The court process was found at times to be humiliating to people, as salacious or intimate details could be published and were aired in Court or in the media.

Signs of a de facto relationship

Nowadays, determining whether a "de facto relationship" existed requires the Court to assess many factors including intimate, personal, and private details of the lives of the couple.

The type of evidence that may be required to prove the existence of a de facto relationship includes the duration of the relationship, whether the couple shared ownership of property or lived together, the degree to which they shared each other's lives such as eating meals and attending events together, and the care of children.

A full summary of these potential signs can be found here.

When the court looks at these factors, no one particular factor will necessarily be determinative of the existence of a de facto relationship. This is particularly evidenced in recent cases where detailed facts and evidence were put to the court to establish if a de facto relationship existed or not.

Examples in court

A recent case1 highlights that a couple does not necessarily need to live together to be in a de facto relationship. In this case, the respondent denied that they ever lived together in a de facto relationship and asserted that the Applicant had been his boyfriend and then his friend for some years. Despite not sharing a common residence, the Applicant was successful in establishing that a de facto relationship existed based on the following:

1. The nature and extent of their common residence: Although each party retained their separate residences, the parties spent one or two nights per week at the other's home and travelled on holidays to Europe and Asia together.

2. Whether a sexual relationship existed: The applicant gave evidence that a substantially monogamous sexual relationship existed until approximately 2013 and this was supported by a large number of text messages and emails containing highly sexualised comments and photos.

3. The degree of financial dependence or interdependence: the parties' financial interaction was relatively limited. There was, however, evidence that a joint bank account was opened, that the applicant was a trustee and member of the respondent's superannuation fund and that the applicant provided some assistance in furnishing, maintaining, and renovating the respondent's properties.

4. The ownership, use, and acquisition of their property: The parties discussed buying a property together, but never did so. Notwithstanding this, evidence was led to show that the applicant assisted in finding one of the properties owned by the respondent and that the parties jointly managed funds in the respondent's superannuation account.

5. The degree of mutual commitment to a shared life: There was evidence of a significant number of emails and text messages, which expressed intimacy and affection between the parties, as well their broader family. Further, the respondent provided for the applicant in his will.

6. The reputation and public aspects of the relationship: The relationship was found to be very public, with the parties travelling together and they were spoken of as being each other's "partner", "hubby" and the like by family members. There was also evidence to show that the parties frequently attended family events together.

7. Finally, there was evidence that suggested the breakdown of the relationship to be tumultuous and highly emotionally charged.

The Court made a declaration that a de facto relationship existed between the parties from November 2000 to October 2013. The matter was referred to mediation and to trial if it did not resolve.

Your financial responsibilities

As this recent case highlights, you do not need to be married to or living with your ex-partner to be considered in property and maintenance settlements. It is therefore important to consider how property and other financial obligations that you or your partner enter into during the course of your relationship may impact you should you decide to separate.