Open relationships and non-monogamy – are you in a de facto relationship?

While marriage is a well-established consensual legal process, whether two people are in a de facto relationship can be far more complicated. The case of Jones & Michetti [2022] FedCFamC1F 711, where the applicant alleged she was in two de facto relationships at the same time, is an example of this confusion. The existence of a long-term sexual relationship and ad hoc financial generosity will usually not be enough to categorise a relationship as de facto. There needs to be cohabitation between the partners or a greater degree of commitment to a shared life together.

What are the facts of Jones & Michetti?

In about 2002, the applicant, who was born male, commenced a de facto relationship with a female partner.

In about 2003, they both commenced a sexual relationship with another man, who is the respondent in the de facto proceedings. The relationship between the three grew to include overseas and interstate holidays, attending social activities together and the like; largely paid for by the respondent.

From 2005 onwards, the applicant stayed overnight at the respondent’s house about once per week, but sometimes up to three nights each week.

In 2018, the applicant commenced transitioning to a female. The respondent paid for a significant portion of the applicant’s medical expenses, costing over $30,000. That same year, the respondent executed a Will bequeathing interests totalling about $1.4 million to the applicant, whom he referred to as his ‘partner’ in the document.

The relationship between the applicant and respondent ended in late 2019, around the time the applicant accepted that she had commenced a relationship with a third person.

It was acknowledged that from 2003 to 2019, the applicant, respondent and the applicant’s long-term female de facto partner, all had sexual relationships with other people.

What is a de facto relationship under the Family Law Act 1975 (Cth)?

Two people are in a de facto relationship if they have a relationship, as a couple, living together on a genuine domestic basis. The Act lists circumstances the court may consider in making that determination, for example, the nature and extent of a common residence and the degree of financial dependence.

While the definition suggests that it is a requirement that the couple share a common residence, the case law reflects that partners who maintain separate homes may still fall within the de facto categorisation.

However, where there is an absence of cohabitation, partners need to establish that there is more than just a sexual or casual relationship; there needs to be a commitment to the relationship and to the couple’s future together.

In other matters where the applicant party succeeded in a de facto claim, this has included, for example, a partner turning down job opportunities interstate to remain close to the other party, or one partner being highly reliant on regular financial support from the other.

Another complication with de facto relationships is that it is possible to be in more than one at the same time, or to be married to one person and in a de facto relationship with someone else.

What was the outcome of Jones & Michetti?

The applicant was unsuccessful in establishing a de facto relationship. The Judge considered that the main factors against the finding of a de facto relationship were as follows:

1.         No common residence was shared by the applicant and the respondent.

2.         The parties did not have an exclusive sexual relationship.

3.         The applicant was not financially dependent on the respondent, although she relied on him to live a more lavish lifestyle than she could otherwise afford.

4.         The parties acquired no property together.

5.         While the applicant said she was devastated by the breakdown of her relationship with the respondent, this was in the context of her being in relationships with up to three people at the same time.

6.         The parties did not present in public as a couple living on a genuine domestic basis.

7.         There was a lack of third-party corroborative evidence that the parties were in a settled domestic relationship.

Regarding the respondent’s Will, the Court accepted the respondent’s evidence that he was concerned about the applicant’s wellbeing at the time of her transition and, as a single man with no children, leaving her a large sum of money was ‘no skin off his nose’. His explanation for referring to the applicant as his ‘partner’ to avoid confusion among the other beneficiaries was also accepted.

How does this affect you?

We are seeing an increasing number of cases that involve couples experimenting with open or polyamorous relationships. If enough de facto threshold ‘boxes’ are ticked in a relationship, there is the potential for unintended legal consequences. Further, even if a de facto claim is not particularly strong, the respondent party will incur substantial legal costs and stress defending an application.

If you are concerned that you may be exposed to a de facto claim or if you have any questions about the legal status of your relationship, please do not hesitate to contact me or one of the other family lawyers in our workgroup.