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Is it De Facto Relationship?

Jul 5, 2017

In a recent decision handed down by the Federal Circuit Court of Australia (Newland & Rankin [2017] FCCA 210), one of the issues the Court had to determine was the length of the parties de facto relationship which was in dispute.

The parties met in April 2003 and commenced a sexual relationship not long thereafter.  The de facto husband alleged the relationship commenced at that time.

The de facto wife, on the other hand, said they were “friends who enjoyed a casual sexual relationship” until 2008 and it was at this time that their de facto relationship began. 

In determining the length of the relationship, Judge Hughes made note of the following evidence of the parties:

  • the de facto husband agreed he was dating another woman in September 2003 albeit he denied having a serious relationship with her;
  • the de facto husband stayed in the de facto wife’s home in Canberra from May 2004 until September 2004 following which the de facto husband moved to Sydney for work;
  • the de facto husband conceded he may not have gone to Canberra to visit the de facto wife at all during the period September 2004 to May 2005;
  • whilst the parties agreed they did spend time together over the ensuing years, during which they resumed a sexual relationship, the frequency of the visits was disputed;
  • from November 2005 until September 2007, the de facto husband’s address with the RTA was in NSW (as opposed to Canberra where the de facto wife lived);
  • the parties’ sexual relationship resumed in September 2007 whereupon the de facto wife became pregnant.  The de facto wife, whilst hopeful this would be the beginning of a more serious relationship between the parties, said when she told the de facto husband of the pregnancy, he said he was not ready for commitment and continued to make arrangements to move into a flat of his own.  The de facto wife went on to say the de facto husband later told her he had met another woman who had moved into his flat, the de facto husband conceding he had had a sexual relationship with the other woman.  The de facto wife said she felt heartbroken and unsupported by the de facto husband which led her to terminate the pregnancy;
  • in March 2008, the de facto wife underwent surgery which resulted in her suffering complications.  The de facto husband said the de facto wife’s illness caused him to realise how important his relationship with her was and that he wanted to commit to his relationship with her;
  • in April 2008, the parties went on holiday together and, following their return, the de facto husband terminated his lease on his flat in NSW and moved into the de facto wife’s home, thus the parties began living together on a genuine domestic basis;
  • the only independent evidence to show there was a de facto relationship before 2008 was that in 2006 the de facto husband had nominated the de facto wife as the sole beneficiary of his superannuation policy.

After considering all of the evidence, His Honour made the following findings:

"I find the de facto relationship of the parties began in April or May 2008 and ended in April 2010.  They enjoyed a friendship for a much longer period, commencing in about March 2003 and continuing until the end of 2011.  Between March 2003 and the beginning of the de facto relationship in early 2008 they enjoyed an intimate and casual sexual relationship and lived together in the de facto wife's house for about two months in early 2003.  That did not amount to a de facto relationship within the meaning of Section 4AA of the Family Law Act 1975 as until mid-2008, the parties had no shared finances, acquired no property together and there was no mutual commitment to a shared life.   The parties were good friends, enjoyed each other's company and provided practical and emotional assistance to each other when sought.  The lack of mutual commitment to a shared life was clearly demonstrated by the de facto husband's rejection of the de facto wife when she was pregnant with his child and his pursuit of another relationship at that time.  I am well satisfied on the evidence that the parties separated in April 2010. "

The Court then went on to consider whether there should be an adjustment of the parties’ property interests, ultimately finding that no adjustment was warranted on account of contributions made by the de facto husband during the parties 2 year relationship.

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