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14 August 2023

‘Romantic’ is not the test for a de facto relationship but a binding financial agreement is always a good idea

In this video, CGW family law partner Justine Woods talks about the how 'romantic' is not one of the factors the court will look at in deciding whether a de facto relationship exists; and how a binding financial agreement is always a good idea.

Video transcript

Hello, hello, everyone. I’m Justine Woods, I’m the family law partner at Cooper Grace Ward. And our topic today is in the area of de facto relationships.

Defacto vs Marriage

Now, they often have a level of complexity that marriages don’t necessarily have. Now, that is really just the practical effect of being able to prove marriage by nothing more than a marriage license and a marriage certificate as one of the old cases described. But in a de facto relationship, there is sometimes a dispute about when the relationship began and when it ended. Now, length of relationship, married or de facto is very important in terms of property settlement outcomes and in a de facto relationship you have to be together for two years or have a child, some other form of special circumstance or contributions have been made of a certain type that means hardship would arise if orders were made. So, you’ve got to get basically to a threshold issue and two years or a baby is generally the most commonly applied.

Two sets of cases that appear in the de facto sphere

But at the end there are other considerations because the court only has jurisdiction over a de facto couples’ property if they have actually separated. That is not the case, it might surprise you, if you’re married. Because the High Court has confirmed that the Family Law Act applies to married couples, whether they’re in an intact relationship or separated. But for de factos, you actually have to have had the relationship break down. So, there are two sets of cases that appear in the de facto sphere that we simply don’t see to the same degree or at all in marriage. And that is declarations about the length of the of the de facto relationship and factual disputes about that and whether there was a relationship at all. Now, there’s a huge catalogue of cases where one person says a variety of things; Well, they just lived in the donga. I didn’t really know what a donga was until I had a matter where that – it’s a demountable dwelling, in case you weren’t sure. Or they lived in the garage house, or the summerhouse, or next door, across the road.

Case of Denys and Kellett

So, we weren’t into de facto relationship at all. Or, quite intriguingly, in a recent case of Denys and Kellett, they were actually sleeping in the same bed, living in the same house, having a sexual relationship. But the male described that as a  renter with sexual benefits, and the female described that as a de facto relationship. Now, this will sound horribly gendered, and it is not, it is not always the case. But the bulk of the cases in this sphere are about men saying it was just kind of a sexual relationship or some other kind of roommate with a sexual element and the lady saying, no, no, it was a relationship. So, that’s just, it’s a stereotype to some degree, but it’s how the cases generally pan out, although there are some where the reverse applies. So, what that means is that a judge is then called upon to decide was the couple living together on a genuine basis as de facto couples on a genuine domestic basis? Now there are long sections in the Act that set out what indicia, what factors the court has to take into account in making a determination. Judges, if they depart from the list, are at their peril. In this case, the judge at first instance referred to a romantic relationship and that the court did not find that one existed here and that there wasn’t a genuine commitment to a shared life, which is one of the factors. But it was heavily, heavily emphasised in the trial judge’s decision that one particular factor and there was also more than one reference to the word romantic in terms of the nature of the relationship. And in the absence of romance, largely, the trial judge found that the de facto relationship did not exist. Now, that was overturned on appeal, and the appeal court said there’s no inclusion of romantic in our indicia, that ought not to have been considered at all and that in context, other factors may have had just as much weight as the concept of living together on a genuine domestic basis.

Clarity is important

And as we know from the High Court case of Fairbairn and Radecki, now that’s an older couple where one had gone into aged care, but even living together, physically living together is not a necessary or sufficient condition for a relationship to either been on foot or to have separated. So, be very conscious of that. Now, the reason clarity is so important, and in that case they might have saved themselves significant trouble had they had a binding financial agreement. And you don’t have to necessarily say, well, I’m romantically, passionately living together. You say, we are living together. This is a relationship that could enliven the Family Law Act and therefore, we want an agreement that sets out what’s going to happen with our assets in the event this relationship, however it’s characterised, breaks down. So, without that clarity of intention, that meant that they went to court, got a decision. It was appealed, there was an appeal hearing, and the appeal court couldn’t and did not substitute their own judgment for that of the trial judge. They what they call remitted them for rehearing, which means effectively starting from scratch in front of another judge. So, that depending on, you know, who you’re acting for, that’s a victory or not. But the misery, the expense and the delay of that could have all been avoided with a binding financial agreement.

If you’d like to talk about this or any other issue pertaining to family law, you’re so welcome to contact us here at Cooper Grace Ward.

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This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.

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