HOW ARE THE STRESS LEVELS GOING?
One of the most frequently asked questions we are asked is “Am I in a de facto relationship?”.
This is often considered one of the most complex areas of Family Law and it requires a measured approach.
Meaning of de facto relationship
- A person is in a de facto relationship with another person if:
- the persons are not legally married to each other; and
- the persons are not related by family (see subsection (6)); and
- having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
Working out if persons have a relationship as a couple
- Those circumstances may include any or all of the following:
- the duration of the relationship;
- the nature and extent of their common residence;
- whether a sexual relationship exists;
- the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
- the ownership, use and acquisition of their property;
- the degree of mutual commitment to a shared life;
- whether the relationship is or was registered under a prescribed law of a Stateor Territory as a prescribed kind of relationship; (not relevant
- the care and support of children; (not relevant)
- the reputation and public aspects of the relationship.
- No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.
- A courtdetermining 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.
FAMILY LAW QUESTION:
Am I in a de facto relationship?
A de facto relationship is defined under section 4AA of the Family Law Act.
The legislation allows for the Family Court and Federal Circuit Court to deal with financial issues arising from a relationship.
De facto couples under the new legislation are able to enter into financial agreements regarding assets acquired:
- before and during the relationship; as well as
- after the relationship has ended.
This part of the de facto legislation in the Family Law Act only applies to partners in de facto couples who:
- separate after 1 March 2009;
- enter into a financial agreement; or
- seek Consent Orders from the Family Court.
Parties who separate prior to 1 March 2009 can, by the consent of both parties, elect to have the matters dealt with in the Family Court. If separation occurred prior to 1 March 2009, the provisions of the Property Law Act 1974 (Qld) will apply.
Separation prior to 1 March 2009 – De facto property matters remain under the State Property Law Act and are dealt with in the State Supreme and District Courts.
For example in a recent case in which we were involved the question arose, “Did the facts of our client’s case establish a de facto relationship? If so, did the relationship continue after 1 March 2009.
Our client in his instructions states that the relationship with the Applicant commenced in or about 2006. At that stage it was a casual relationship although they had sexual intercourse during this period. The relationship did develop and they saw each other exclusively for a short period of time of 4 to 5 months towards the end of 2007 or the beginning of 2008. The relationship did deteriorate after this point in time and the relationship became more of friendship than an exclusive relationship with each other. From early 2009 the parties began taking out other people and our client had sexual relationships with other people.
If the relationship ceased before 1 March 2009 then the Family Court has no jurisdiction and to determine this matter the application should have been brought in the State Court.
The parties at all times lived separately and apart and at no time did they share accommodation.
During the first 2 years of the relationship our client and the Applicant would holiday together approximately once per year. Our client’s partner requested our client to sign a Financial Agreement to protect her assets. Our client after obtaining limited legal advice signed the agreement. For a period of 6 months prior to signing the Financial Agreement in 2010 the parties were spending approximately one day per month together.
There is no definite formula for determining if the parties were in a de facto relationship. The relationship can take many forms. However the test would be that to an outsider looking at the couple would that outsider say that they were in a shared relationship which had all the attributes of a marriage. This is purely a discretionary consideration for the Court. On the evidence provided by our client there is a strong possibly that the relationship was only for a short period of time of 4 to 5 months and after that time it was not a de facto relationship but more of a relationship of friendship. If the Court reaches this conclusion then the Court does not have jurisdiction to make a decision in regard to the Financial Agreement and the Applicant’s application should be dismissed. However, this is a discretionary decision of the Judge hearing the matter. A judgment in regard to this would vary with different Judges determining these issues.
Taking into account the factors listed under the heading ‘Meaning of a de facto relationship’ the following matters of our client’s case are relevant:
- Could it be said that having regard to all the circumstances of their relationship did they have a relationship as a couple living together on a genuine domestic basis. In our view the relationship does not fall within this category.
- The nature and extent of their common residence. They did not have a common residence.
- A sexual relationship did exist.
- There was not a degree of financial dependence on each other. The only financial arrangements they had were the joint account used for the purpose of saving monies for a deposit on acquiring a property.
- The ownership and acquisition of their property. They each acquired property in their own names. The Applicant resided in her property. Our client did not reside at that property.
- The degree of mutual commitment to a shared life. There was little commitment to a shared life.
- The relationship was not registered.
- There were no children.
These are only guidelines for the decision of the Judge but they would indicate that there was not a de facto relationship save for the short period mentioned. The matter remains to be tested in the Family Court.