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Unlike marriages which are marked by ceremonies and certificates, other relationships can have grey areas and it may be difficult to ascertain whether two people are de facto partners in a legal sense. If disputed, this requires detailed examination of the nature of the relationship and may ultimately need to be determined by a court.

Definition of de facto relationship

In Western Australia, the Interpretation Act 1984 (WA) defines the term “de facto relationship” for the purpose of other written laws in the State. The definition is “a relationship (other than a legal marriage) between two persons who live together in a marriage-like relationship”.

The provision goes on to list factors that are indicators of whether or not a de facto relationship exists, but are not essential, including:

  1. The length of the relationship;
  2. Whether they have resided together;
  3. The nature and extent of common residence;
  4. Whether there is, or has been, a sexual relationship;
  5. The degree of financial dependence or interdependence and any arrangements for financial support;
  6. The ownership, use and acquisition of their property (including property they own individually);
  7. The degree of mutual commitment by them to a shared life;
  8. Whether they care for and support children; and
  9. The reputation and public aspects of the relationship.

The provision also specifies that it does not matter whether:

  1. The persons are different sexes or the same sex; or
  2. Either of the persons is legally married to someone else or in another de facto relationship.

Therefore, although the law in Australia prevents a person from entering into more than one marriage at once, it is legally possible to be in a de facto relationship as well or in multiple de facto relationships.

A recent decision of the High Court of Australia in Fairbairn v Radecki [2022] 96 ALJR 529 has confirmed that the term “living together” should be construed as meaning “sharing life as a couple” and that what may constitute a de facto relationship is not to be determined in the same way in every case. Further, it is not necessary for every de facto relationship to have a common residence to some extent.

Two other recent cases have considered whether the parties were in a de facto relationship and concluded they were not. Although these were not heard in Western Australia, the definition of a de facto relationship that applied in those cases under the Family Law Act 1975 (Cth) is similar.

In Jones & Michetti [2022] FedCFamC1F 771, the parties were in an open relationship. They had a sexual relationship for about 16 years and the respondent did not dispute that it was a loving relationship. However, the applicant was in a de facto relationship with someone else and the respondent contended that the parties had a long-term casual relationship rather than a de facto relationship. The parties maintained separate residences but stayed together on about one night per week. They were financially independent, but the respondent paid for holidays, luxury gifts and gender reassignment surgery for the applicant. The applicant was included in the respondent’s Will. The judge found that the parties did not present socially as a couple in a settled domestic relationship and ultimately decided to make a declaration that there was no de facto relationship between the parties.

In Swinbank & Stein [2022] FedCFamC1F 682, the parties met online and had two children together. The applicant claimed it was a de facto relationship, but the respondent said it was “at best, a casual sexual relationship”. The applicant worked fly-in fly-out and stayed with the respondent occasionally over about six years, but the respondent denied that they ever lived together. She said that the applicant maintained his own residence, did not keep possessions at her house and did not have a key to her house. The applicant did not provide the respondent’s address on documents or include his relationship status in his taxation returns. The pregnancies were unplanned and the respondent spent occasional time with the children but was not involved in their day-to-day lives. The respondent said that the applicant did not show affection towards her or take her on dates, aside from one dinner for her birthday which she organised herself. The parties were financially independent, except that the applicant met his child support obligations, and they did not provide for each other in their Wills. The judge found that there was no evidence suggesting a commitment to a shared life together and that the parties had a relationship as parents of children and nothing more. The judge here also made a declaration that there was never a de facto relationship between the parties.

Relationship conditions

Even if two people did have a de facto relationship, this does not necessarily mean that they can bring a claim for property settlement or de facto partner maintenance against the other.

The Family Court Act 1997 (WA) provides that the court can only make a financial order in relation to a de facto relationship if it is satisfied that:

  1. There has been a de facto relationship between the partners for at least two years; or
  2. There is a child of the de facto relationship under 18 years and failure to make the order would result in a serious injustice to the partner caring or responsible for the child; or
  3. The applicant made substantial contributions and failure to make the order would result in serious injustice to them.

In deciding whether there has been a de facto relationship for at least two years, the court must consider the length of any break in the relationship.

Just and equitable

Further, the court must consider whether it is just and equitable to make any order altering property interests in the circumstances of a case.

In Fielding & Nichol (2014) FLC 93-617, the judge concluded that despite the parties being in a de facto relationship for 12 years, it was not just and equitable to make any order for property settlement because they had kept their finances separate.

Connection with WA

The Family Court of Western Australia only has jurisdiction to make financial orders in relation to a de facto relationship if it is satisfied that:

  1. One or both of the de facto partners were resident in Western Australia on the day the application was made; and
  2. Both de facto partners have resided in Western Australia for at least one third of the duration of the relationship or substantial contributions have been made in the State by the applicant.

If these conditions are not met, then it may be possible to apply interstate instead.

Separation and time limitation

For de facto relationships, there is a time limitation for commencing proceedings for property settlement or de facto partner maintenance of two years from the date of separation.

However, the court may still grant leave to apply outside of this timeframe if it is satisfied that hardship would be caused to the de facto partner or a child if leave were not granted.

It can be similarly difficult to determine whether or when a de facto relationship has ended, which may again require detailed examination of the circumstances of the relationship if disputed.

In Fairbairn v Radecki, the High Court found that the de facto relationship did not necessarily end simply because the appellant was moved to an aged care facility and had mental incapacity. However, the court did determine that the relationship had ended for other reasons, including because the respondent acted against the appellant’s best interests under an enduring power of attorney.

Binding Financial Agreements

It is possible to enter into a Binding Financial Agreement before or during a de facto relationship to set out how your property should be divided in the event of separation.

If you would like specific advice about whether you are in a de facto relationship or how to protect your financial interests, please contact Lynn & Brown Lawyers to discuss booking an initial consultation.

About the Author: Kate was admitted to the Supreme Court of Western Australia in 2012 and has practised family law for many years. She is motivated to help clients achieve positive outcomes as efficiently and amicably as possible but also has experience in court proceedings.

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