Articles

De-facto at first sight

As with marriages, the Federal Circuit and Family Court of Australia (“FCFOA”) has jurisdiction over property matters that pertain to de-facto relationships. It is (generally) easy to prove that a couple are married, usually evidenced by the existence of a marriage certificate. However, whether a couple is in a de facto relationship can be an issue of some contention.

The FCFCOA will determine that a relationship between two parties is de facto if the following criteria are satisfied:

The parties are not legally married to each other;
The parties are not related by family; and
having regard to all the circumstances of their relationship, the parties have a relationship as a couple living together on a genuine domestic basis.

The FCFCOA in determining a de facto relationship may look at the following circumstances:

The duration of the relationship;
The nature and extent of their common residence;
Whether a sexual relationship exists;
The degree of financial dependence or interdependence, and any arrangements for financial support, between them;
The ownership, use and acquisition of their property;
The degree of mutual commitment to a shared life;
Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
The care and support of children; and
The reputation and public aspects of the relationship.

It is important to note that none of the considered circumstances are necessary to establish a de facto relationship, rather they are simply factors that the court may consider.

Further a de facto relationship can exist between two people even if one of the parties is legally married to someone else or in another de facto relationship.

The existence of de facto relationships continues to be a live issue in the court today. In the recent case of Swinbank & Stein [2022] FedCFamC1F 682, Mr Swinbank made an application for property orders on the basis of a de facto relationship with Ms Stein. Ms Stein denied that a de facto relationship existed and maintained that he only did work on the house to “get in [her] pants”.

Ultimately, the court found there was no de facto relationship. In determining whether the parties had a relationship as a couple living together of a genuine basis, the Court found:

It is not necessary that the parties shared a common residence;
There was a sexual relationship but Ms Stein’s evidence was that she sought a more secure and permanent relationship, which Mr Swinbank would not commit to;
There was no financial interdependence between them, despite assertions by Mr Swinbank to the contrary;
The parties owned no real property together. The discussions between them about selling property was consistent with a romantic relationship but did not thereby amount to a couple living together on a genuine domestic basis;
There is no evidence that Mr Swinbank made any provision for Ms Stein in the event of his death. Ms Stein’s evidence was that she deliberately made no such provision;
The parties did not share the use of property, save for Mr Swinbank staying at Ms Stein’s house from time to time; and
There is no evidence consistent with a commitment to a shared life together.

This goes to show that the court must take into account all circumstances when considering the existence of a de facto relationship, and that there is no criteria (even the existence of children) that automatically qualifies a relationship as de facto.