An Affair or a De Facto Relationship?

A recent Family Court matter concerned a female applicant seeking a declaration that she was in a de facto relationship with a married male. There had been a relationship between the parties for 17 years. The married man denied the existence of a de facto relationship and described his relationship with the applicant as “an affair”.

New Family Law Deals with De Facto Arrangements

New De facto laws came into force on 1 March 2009. These new laws enable de facto relationships to be dealt with under the Family Law Act.

In the subject case, the relationship between the parties was kept a secret from the married man’s wife.

The married man did have a relationship with the female applicant and did take holidays with her, assist her in the purchase of a home and provide her with significant financial support.

Application Dismissed

The female’s application was dismissed. The Family Court found that the parties had sought to maintain separate lives and did not satisfy the requirements of a de facto relationship as defined in the Family Law Act.

The female applicant was unable to proceed with her claim for property adjustment or maintenance against the married man.

As this decision was the decision of a single Judge, it may be the subject of an appeal.

This is a relatively new area of law.

The Family Law Act provides a definition of a De Facto Relationship at section 4AA :

Meaning of de facto relationship

(1)  A person is in a de facto relationship with another person if:

(a)  the persons are not legally married to each other; and

(b)  the persons are not related by family (see subsection (6)); and

(c)  having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Paragraph (c) has effect subject to subsection (5).

Working out if persons have a relationship as a couple

(2)  Those circumstances may include any or all of the following:

(a)  the duration of the relationship;

(b)  the nature and extent of their common residence;

(c)  whether a sexual relationship exists;

(d)  the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

(e)  the ownership, use and acquisition of their property;

(f)  the degree of mutual commitment to a shared life;

(g)  whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

(h)  the care and support of children;

(i)  the reputation and public aspects of the relationship.

(3)  No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.

(4)  A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

(5)  For the purposes of this Act:

(a)  a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and

(b)  a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.