Bob and Betty have both had terrible experiences in property settlement matters with their prior spouses. They are now in their 50’s and have been ‘going out’ for about 8 years. They have both sworn that they will never get involved in a de facto relationship or marriage again!
Bob and Betty do not live together. They have their own separate houses over an hour’s travel apart, and Betty still has 2 adult children from her earlier relationship still living with her.
They see each other 3 weekends a month. On 2 of those weekends Bob stays at Betty’s house for the weekend (2 nights) and on another weekend Betty similarly comes to stay with Bob. The reaming weekend they each stay at their respective homes and do not see each other. They ring each other once or twice during the week.
Bob and Betty do not have any joint accounts, nor do they share finances. They have their own assets and liabilities and do now own anything jointly. They have separate credit cards and neither of them is authorised to use the others card.
When they go out to dinner together, Bob, being the gentleman that he is, usually pays. They regularly go on overseas holidays together and pay their own way, though Bob again will pay for meals and drinks.
They have a sexual relationship but have no children together.
They are known as a couple to close friends and family, and when they are out together in public on weekends or on holidays they would be seen as a couple. However, on all other occasions during the week and on one weekend a month, they will be seen living their own separate lives, paying their own bills, buying their own groceries, doing their own washing, and cleaning, and maintaining their own homes, gardens, and lawns.
On the weekends that they are at either party’s property, they both make contributions to their food, groceries, and cleaning. Bob will ‘wipper snip’ while Betty is on the ride on mower, and so on. They both shared in the repainting the inside of Betty’s house.
Have Bob and Betty fallen into the trap. Are they in a de facto relationship, even though they do not live together?
What constitutes a de facto relationship?
Every person’s circumstances will be different to that of Bob and Betty, and each case will be decided by scrutinising all aspects of each relationship.
The Family Law Act 1975 (“the Act”) is a Commonwealth Act, so the same de facto laws apply throughout Australia. The Act deals with what factors a court must consider when deciding if a de facto relationship exists or not.
If (god forbid) Bob and Betty broke up, and Betty ‘turned nasty’ and wanted to file proceedings in the court for a property settlement alleging a de facto relationship, she would have to satisfy the Court that all the following circumstances exit:
- That she was in a genuine de facto relationship with Bob, which has broken down irretrievably; (can Betty prove this?)
- That the relationship meets one of the following four gateway criteria:
- That the period for the de facto relationship is at least 2 years (Betty could show this);
- That there is a child of the de facto relationship (not applicable in Betty’s case);
- That the relationship is or was registered under a prescribed law of a State or Territory (again not applicable in Betty’s case); or
- When assessing property or custodial claims in cases of a breakdown of a relationship, it is recognised that significant contributions were being made by one party and the failure to issue an order would result in a serious injustice (it would appear that neither Bob nor Betty made a significant financial or non-financial contribution that deserves an adjustment to solve any injustice).
- That Bob and Betty have a geographical connection to a participating jurisdiction (both Bob and Betty are Australian citizens and live in Queensland, so this is satisfied);
- That their relationship broke down after 1 March 2009 (Bob and Betty only recently separated, so this requirement is satisfied).
Having satisfied all the other gateway requirements, whether Betty is successful will depend upon her proving that they were in a genuine de facto relationship.
What makes a genuine defacto relationship?
In deciding whether Bob and Betty were in a genuine de facto relationship for the first gateway criteria, the court will have regard to the following matters.
Section 4AA of the Act defines a de facto relationship. The Act requires that Bob and Betty must have had a relationship as a couple living together on a genuine domestic basis for a defacto relationship to exist.
The Act then gives a list of factors to consider in deciding if Bob and Betty had a relationship as a couple living together on a genuine domestic basis.
Those factors are:
- the duration of the relationship (8 years – this is good for Betty);
- the nature and extent of common residence; (the parties lived separately and only spent holidays and 6 nights a month together – this is not good for Betty’s prospects);
- whether a sexual relationship exists or existed (it did – again this good for Betty);
- the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties; (Bob and Betty were financially independent of each other – this is not good for Betty);
- the ownership, use and acquisition of their property (Bob and Betty did not buy any assets together, and they owned their own homes and vehicles. Again, this is not looking good for Betty);
- the degree of mutual commitment to a shared life (this appeared to be in existence, however Bob says they were just taking one day at a time and if the relationship did not last, then so be it. Bob says Betty was of the same view, but non-surprisingly in her affidavit she claims that this commitment to a shared life existed. The Judge may need to decide based on credit, who is telling the truth in a “he said she said” argument, and objectively it is difficult to figure out from the facts, which are (like every case) so unique. Given that Betty has the onus of proving the facts I will give her a fail on being able to prove this joint commitment);
- whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship (this relationship was not so registered, and this issue is really for same sex relationships before amendments were made to the Marriage Act to allow same sex couples to marry – this is not relevant to Bob and Betty who were very much male and female);
- the care and support of children; (there are no children together, another blow for Betty) and;
- the reputation and public aspects of the relationship (I will give this one to Betty because all their family and close friends knew them as a couple, and when in public together they acted as couple).
No one factor is more important than any other. However, the more factors from this list that Betty can prove will aid her in convincing the Court that there was a de facto relationship. Likewise, the more factors that Bob can disprove will help show that there was not a defacto relationship in existence.
Betty is looking good on 3 of the above factors (duration of relationship, a sexual relationship and public perceptions), however Bob is looking much better on 5 of the factors (no common residence, financially independent of each other, property ownership use and acquisition, no mutual commitment to a shared life, and no children together).
There is not a certain number of factors from the list that must exist (or not exist) for a defacto relationship to be proven (or disproved for the absence of a defacto relationship).
There is also no minimum number of nights that the parties must spend together in a common residence, nor is there a need for the parties to have actually lived together at all before a defacto relationship will be found to have existed.
The Family Law Act also recognises that a person who is married, may also possibly be in a defacto relationship with another person at the time. A person can also be in several de facto relationships at the same time if the test is satisfied for each of those relationships.
Does Betty succeed?
If I were acting for either Betty or Bob, I would be able to argue very strongly in either of their cases of the existence or non-existence of a defacto relationship. Who will win will depend on how the evidence falls at the hearing, matters of credit and what factors the Judge considers to be most important in deciding the matter one way of the other. Judges have very wide discretion in deciding these matters, one Judge might say there was a defacto relationship, while another Judge (or the Court of Appeal) may decide that there was not.
If I were a betting man, my money in this case would be on Bob, but I would not put too much money on the bet. This is close to a 50/50 chance. It could go either way.
If I were advising Betty or her prospects of success, I would be telling her that she has a compelling case, but I would be testing her to see if she accepts whether it is worth the risk. If Bob opposes the existence of a defacto relationship (which he will) Betty will have to pay significant legal costs that will be involved if the matter goes ahead all the way to a final hearing. She will need to weigh that up with the amount that she is looking for, and her prospects of success. The normal rule in family law cases is that each party pay their own legal fees.
If I were acting for Bob, again I would be telling him that he also has a compelling case. I would recommend that he strongly oppose Betty’s application on the basis that there was no defacto relationship and gather as much evidence as he can to support this conclusion.
Generally, matters like this will settle at mediation, with both parties accepting that going to Court will be expensive, taxing on their time and their emotions, and involves a serious risk that they each might fail.
Time limit to start proceedings for financial orders
If (despite her legal advice on costs and chances of success) Betty still wishes to try to obtain financial orders, and settlement of the matter at a mediation fails (neither Bob nor Betty will shift from their positions), then Betty must apply to the court within two (2) years of the breakdown of the defacto relationship. After that time, she would need the leave (permission) of the Court to apply, and the Court does not readily give that leave.