Although being in a ‘relationship’, being a ‘de facto’, ‘seeing each other’ or simply ‘casual’ are commonly interchangeable phrases in common talk, the implications of being in a De Facto relationship are significant.
Unlike marriages, where there are formal ceremonies and certificates to delineate the commencement of marriage, de facto relationships lack any formal recognition – per Justice Mushinin Moby & Schulter (2010) FLC (see below).
The problem therefore arises as to the sincerity of the relationship – whether it is in fact de facto or otherwise ‘casual’.
Section 4AA of the Family Law Act (the ‘Act’) sets out criteria to be considered for this purpose. Subparagraph (c) operates as a catch-all, ‘having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis’.
The Gateway requirement for the Court’s jurisdiction is prescribed in Section 90SB of the Act –
A court may make an order under [part VIIIAB div 2] in relation to a de facto relationship ONLY IF the court is satisfied:
a) that the period, or the total of the periods, of the de facto relationship is at least 2 years; OR
b) that there is a child of the de facto relationship; OR
(i) the party to the de facto relationship who applies made substantial contributions of a kind mentioned in paragraph 90SM(4); AND
(ii) a failure to make the order or declaration would result in serious injustice to the applicant;
Practical Considerations – it is necessary to consider the entirety of the facts of the relationship.
Justice Mushin in Moby & Schulter held it was inappropriate to try to draw comparisons between a marriage relationship and a de facto relationship because the legislative schemes provide that a marriage can only be between one man and one woman.
The legislative definition of a ‘de facto relationship’, however, enables a person to be in two de facto relationships simultaneously and also recognises relationships between two people of the same sex, together with other variations in relationship particulars.
Justice Mushin expressed that the ‘concept that a de facto relationship is, for the purpose of the legislation, diverse’ and that ‘the whole structure of the legislation confirms that view’.
On all of the evidence Mushin J concluded that a de facto relationship had existed between the parties for 7 distinct periods over 7 and a half years between May 2002 and Oct 2009. The first period of the relationship was of 2 years’ duration, the remaining periods were each of approximately 6 months in length.
The Applicant, Moby (‘M’), asserted that a De Facto relationship existed between herself and the Respondent (‘S’).
What seemed to tip the scales in favour of holding a De Facto status in this case was that the parties lived together for alternating 2 weeks every month. For the 2 weeks of the month which S’s teenage daughter lived with him as part of his custody arrangements from his previous marriage, M moved out of the house.
His honour held that despite S’s evidence, the relationship was sexual, M had provided a good deal of the chattels to furnish the residence, S paid rent for M and paid the outgoings of the property and evidence existed that S had publicly affirmed their relationship.
Jonah & White  FamCA 221 – Just a Mistress
Justice Murphy held that no de facto relationship was established for the reason that ‘absent from the relationship … was the ‘merger of two lives into one’, or the ‘coupledom’ as earlier referred to’, and thus that there was no de facto relationship.
Justice Murphy explained, ‘In my opinion, the key to that definition [of being in a defacto relationship] is the manifestation of a relationship where ‘the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis’. It is the manifestation of ‘coupledom’, which involves the merger of two lives’.
In this case, the parties kept their relationship, of 17 years, secret (the parties did not socialize together as a couple), the parties kept and maintained a household distinct from the other, the parties did not co-mingle assets, did not engage in joint expenses and otherwise acquitted and maintained property in their individual capacities.
The parties rarely socialized with each other’s friends and, for all intensive purposes, were successful in keeping their relationship clandestine.
Factors pointing towards a De Facto relationship were that the two had engaged in a sexual relationship exclusive of other partners, apart from Mr White maintaining his relationship with his wife and having ‘a few one night stands’; Mr White supporting Ms Jonah financially up to $2,500 per month for 11 years and Mr White contributing a lump sum of $24,000.00 to Ms Jonah’s home.
Whether a relationship is just ‘casual’ or whether it crosses the threshold as being a ‘De Facto’ is a matter of adjudication on the facts.
In Jonah and White, the trial judge held that the parties were ‘two people who each sought to, and did in fact, maintain separate lives’, even though they met regularly over a lengthy period of time.
Thus the ultimate question remains, whether ‘the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis’.