Does a two-year relationship mean we are a de facto couple?

25 March 2020

For family law purposes, a person is in a de facto relationship with another person if they:

  1. Are not legally married to each other
  2. Are not related by family, and
  3. Have a “relationship as a couple living together on a genuine domestic basis”.

In deciding whether parties have a “relationship as a couple”, the Court will consider:

  • the duration of the relationship
  • whether the parties share a common residence or have any joint property
  • whether a sexual relationship exists
  • the degree of financial dependence or interdependence
  • the care and support of children, and
  • the degree of mutual commitment to a shared life, including observations from family and friends as to the parties’ relationship.

The Family Court recently found that even though the parties had been in an “on-again-off-again” relationship for nearly 4 years, the relationship was not a “de facto” relationship.

In reaching this decision, the Court considered that the parties:

  • Would see each other weekly during the day and stay overnight at one of their houses, up to a few times a month. They engaged in activities together including going to the gym, walks, bike rides, going out for dinner, and travelling interstate and overseas together.
  • Had a sexual relationship throughout the course of the relationship, however both parties accept that the frequency of that sexual activity diminished in the last 2 years of the relationship.
  • Did not have any joint bank accounts, joint loans, joint insurances and/or jointly owned property.
  • Each had adult children from previous relationships. Neither party contributed to the care and support of the other party’s child/children. For example, while both parties bought Christmas and birthday gifts for each other over the course of the relationship, neither party bought Christmas or birthday gifts for the other party’s child/children.
  • Rarely socialized with each other’s social circle. For example, Ms Pether often had weekly or fortnightly social functions with her neighbours and other friends. These were not occasions to which Mr Christian was invited. Likewise, Ms Pether did not socialise to any significant extent with Mr Christian’s friends.

Ultimately, the Court found that the parties had maintained separate lives and there was not a merger of their independent lives into that of two people “living together as a couple on a genuine domestic basis”. Other cases have referred to this as the manifestation of “coupledom”. In this case, the court was not convinced that the parties had been in a de facto relationship.

It is also important to remember that the Court only has jurisdiction to hear an application for property division or spousal maintenance in a de facto relationship if:

  1. The relationship lasted for more than 2 years, or
  2. There is a child of the de facto relationship, or
  3. The party making the application made substantial contributions to the relationship and a failure to make an order would result in a serious injustice to that party, or
  4. The relationship was registered under law.

If you need help with your relationship dispute, we invite you to get in touch with our team.

Christian & Pether [2019] FAMCA 826

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