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Just when you thought you weren’t in a de facto relationship?

Dec 1, 2014

Following on from last month’s article, “Was I in a De Facto Relationship?”, the recent Family Court decision of Clark & Clark & Ors [2014] FCCA 234 involves the not uncommon situation whereby parties maintain separate homes or divide their time between their respective homes.

Section 4AA of the Family Law Act defines when a person is in a de facto relationship with another person, one of the criteria being subsection (1)(c) that “having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.”

The section then goes on to set out the circumstances used by a Court to determine if 2 people have a relationship as a couple, one of those circumstances being “the nature and extent of their common residence”.

In Clark & Clark & Ors, Mr Clark (the de facto husband) asserted he and Ms Clark (the de facto wife) only lived together for a short period of time and that after she returned to live in Melbourne, he occasionally stayed with her on a Saturday night every 4 or 5 weeks and that, as such, he was not in a de facto relationship with her.

It was also Mr Clark’s case that for a number of years following his separation from Ms Clark, he was in a relationship with his first wife to whom he was still married at the time.

Ms Clark, on the other hand, asserted that whilst she and Mr Clark only lived together for approximately 11 months, their relationship continued for a period of 11 years.

Ms Clark went on to say that during those 11 years:

  • she continued to have a sexual relationship with Mr Clark which resulted in them having a child together;
  • she and Mr Clark continued to see each other most weeks at her home where Mr Clark would stay for 3-4 nights;
  • Mr Clark supported her financially over the years including providing her with 3 cars and, towards the end of their relationship, he gave her $400,000;
  • the two of them, together with Ms Clark’s children from a previous relationship, regularly travelled overseas where they would hold themselves out together as man and wife;
  • she and Mr Clark exchanged rings and vows at a mock wedding reception followed some months later by a marriage ceremony of some sort.

Judge Burchardt who determined the decision in Clark & Clark & Ors stated the question the Court had to address in that case as being were the parties living together on a genuine domestic basis.

After considering the evidence of the parties and applying the applicable law, Judge Burchardt found that the evidence pointed overwhelmingly to a view that the parties were in a de facto relationship within the meaning of the Family Law Act and that the relationship subsisted for 11 years. This is despite the parties not living in the same primary residence (the parties having only lived together for approximately 10 months) and the non-intermingling of bank accounts and other financial resources.

So what is the message we should take from this case:

Do not assume that because you are not living with a person in a common residence, your relationship is not a de facto relationship.

Contact Us

If you believe you are currently in a De Facto relationship or have any queries about your relationship status, please do not hesitate to contact Carlene Prentice, the family lawyer of this office.   

At Davoren Associates we can help you distinguish if you are in a De Facto relationship and can aim to make the necessary process regarding property and or financial matters as stress-free as possible.  

For further information contact our office on (07) 5575 2844 to discuss your individual needs or to schedule a consultation with our Family Law Solicitor, Carlene Prentice.