12 Oct When is a relationship legally defacto and does it end with an affair?
You may have heard people tell you the ‘rules’ about when a relationship becomes a de facto relationship under the law (often from what they hear from friends or read or watch on tv).
Many people assume you just need to be living together for 6 months tor have a joint bank account to be able make a claim after separation. It’s not that black and white.
There is a distinct difference between dating, having a limited liason, and having a recognised de facto relationship – for the purposes of legal claims.
We look at when a relationship is legally defacto and when is a defacto relationship legally over.
Australian Law regarding being legally defacto
Under the Family Law Act, a couple must be “living together on a genuine domestic basis” to be classed as de facto partners. Section 4AA(2) lists a number of factors that are relevant in determining whether or not a couple is “living together on a genuine domestic basis”:
- 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
- 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;
- the reputation and public aspects of the relationship.
None of these factors are decisive or necessary. A couple may have only one or two of these factors and still be classed as de facto. Another couple may have most points from this list, and not be classed as a de facto relationship. Every relationship is different.
Sample case – disputes about the length of relationship after an affair
Disputes will often centre around the length of the relationship (as it will bear on how much entitlement one gets). That was the case in Grohl & Acland  FamCA 732, determined in September 2018.
In this case, Mr Acland (“the Defacto Husband”) had received a large inheritance, and had an interest in a profitable business. Ms Grohl (“the Defacto Wife”) argued that, as they had been a de facto couple for approximately 23 years (including, crucially, after January 2009) she was entitled to a property settlement with the Defacto Husband after their relationship broke down.
The De Facto Husband contended that the de facto relationship lasted only approximately 9 years, ending in 2004. In this case, if there was no de facto relationship after 2009 as he claimed, she would be unable to make any claim on the De Facto Husband’s property (the key aspect here was that the court did not have jurisdiction over de facto relationships prior to 2009 prior to the law recognising De Factos in property settlements under the Family Law Act).
Friends with benefits argument?
In 1991, when the parties were in their mid-20s, the De Facto Husband moved in to the De Facto Wife’s parents’ home, and they began a sexual relationship, although they lived in separate bedrooms.
In 1995, they moved in to a flat together, and in 1996 purchased a home together. They had a daughter in 1997, and a son in 1998, who was born with disabilities.
After the birth of their son in 1998, the parties began arguing, and the De Facto Wife blamed the De Facto Husband for their son’s disabilities. The relationship declined, and towards the end of 2003, the Husband began an affair with “Ms F.”
Having a secret affair and moving in with the new partner
In January 2004, the De Facto Husband left the De Facto Wife and moved in with Ms F, who had herself left her husband. The parties’ children met Ms F, and the De Facto Husband was paying child support to the De Facto Wife during this time, so was considered separated from the point of view of the Child Support Agency one presumes.
Both the De Facto Husband and De Facto Wife acknowledged that there was a de facto relationship between 1995 (when they moved in together) and January 2004 (when the relationship broke down for the first time.) Both parties agreed that between January 2004 and November 2005, there was no relationship (trial separation?).
De Facto Husband leads double life
In November 2005, the De Facto Husband moved back in with the De Facto Wife and children, and stayed in the home until August 2017.
The De Facto Husband and De Facto Wife spent most nights and weekends together as a family during this time, including Mother’s Day, Father’s Day and Christmas. Throughout this period, the De Facto Husband continued his affair with Ms F. Neither Ms F nor the De Facto Wife knew of the other’s relationship with the De Facto Husband until the matter came to court in 2018.
Evidence brought out in the case
Since coming back to the De Facto Wife:
- The Husband stopped paying child support to the Wife
- The Wife contacted Centrelink to stop her sole parenting payments
- The Husband would call the Wife on his way home from work each night to ask if she needed any groceries
- The Husband bought the Wife a new car as a surprise, and paid for her car servicing
- The Wife even cut the Husband’s toenails and cleaned out the dirt around his nails – this was something that the court called “extraordinary and…quite a persuasive piece of evidence.”
- the Husband was still in a relationship with Ms F throughout this entire period – from January 2004 until the court date.
Crucially, the most persuasive and convincing evidence of the couple “living together on a genuine domestic basis” was not the fact that they lived together, or slept together, but the small things – like cutting a partner’s toenails or asking if she needed milk on the way home.
In the end, it was the ‘little things’ (buying each other groceries, cutting her partner’s nails) that the court was most persuaded by, to find that they were by law considered a de facto couple.
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