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Family Law – What Is A De Facto Relationship

In the case of Pike & Howlett [2010] FMCAfam 802, the Federal Magistrates Court of Australia was recently asked to decide what constitutes a de facto relationship under the Family Law Act 1975 (Cth) (‘the Act’)?

The facts:

Mr Pike and Ms Howlett entered into a romantic relationship in or about 2002 and started living together in March of that year. Friends and family often heard them refer to each other as either boyfriend/girlfriend or partner. Initially their finances were not intermingled: they kept separate bank accounts and maintained individual responsibility for their own financial matters.

By the end of 2002, Mr Pike and Ms Howlett came to share finances – they became financially and emotionally interdependent.  By 2007, Ms Howlett’s parents were invited to move into the couple’s home to live.

There is little more information from the case however Mr Pike and Ms Howlett agreed that their relationship ended in March 2009.

The case:

The matter went to court because Mr Pike and Ms Howlett could not agree on the date of the commencement of their de facto relationship. The parties asked the court to identify that date to assist in assessing contributions in their pending property/financial case.

The case ran for two days, involved several witnesses and testimony about whether Mr Pike and Ms Howlett entered the relationship for convenience, for sexual purposes only or on a genuine domestic basis.

The law:

There are two starting points for determining what constitutes a de facto relationship under the Act. The first is section 60EA which reads:

a person is a de facto of another person if the person is in a de facto relationship with the other person.

and, the second is section 4AA which reads:

  1. A person is in a de facto relationship with another person if:
    1. the persons are not legally married to each other; and
    2. the persons are not related by family (see subsection (6)); 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.

Paragraph (c) has effect subject to subsection (5).

Working out if persons have a relationship as a couple

  1. Those circumstances may include any or all of the following:
    1. the duration of the relationship;
    2. the nature and extent of their common residence;
    3. whether a sexual relationship exists;
    4. the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
    5. the ownership, use and acquisition of their property;
    6. the degree of mutual commitment to a shared life;
    7. whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
    8. the care and support of children;
    9. the reputation and public aspects of the relationship.
  2. No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
  3. A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
  4. For the purposes of this Act:
    1. a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
    2. a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

The decision:

Federal Magistrate Turner analysed the phrase ‘genuine domestic basis’ and referred to previous court decisions regarding that legal concept. His Honour noted that previous court decisions directed that a list of criteria not be formed to determine the existence of a ‘genuine domestic basis’ between two people. 

This was because each relationship is as different to another as the persons within the relationship itself. Further, relationships and people evolve over time and this impacts whether a relationship is occurring on a ‘genuine domestic basis’. Therefore, providing a discrete list of identifying criteria would result in limiting the people who may properly access justice through the court system simply because they do not fit into a predetermined list of relationship or personal attributes.

On the evidence presented at trial, His Honour decided the relationship was a de facto relationship from the end of 2002. It is clear from Federal Magistrate Turner’s decision that he considered sub-sections 4AA(2)(a) to (d), (f) and (i) of the Act. His Honour ultimately made his finding on the basis of the degree of financial and other interdependence which had been achieved between Mr Pike and Ms Howlett by the end of 2002.

How the decision applies to you:

Federal Magistrate Turner’s decision identifies that each fact situation is different from another. Each situation requires legal analysis to determine each person’s rights and responsibilities.

LAC Lawyers will help you in analysing those facts and will advise you on your legal position. Whether you are a potential applicant in the courts or are a person who has received a court document or a letter from your ex-partner’s lawyer requiring your response, you need the experienced and empathetic advice of our family lawyers to determine your next steps.

We look forward to working with you to achieve the best results tailored to your circumstances.

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