Is it a de facto relationship or not?

A recent Family Court decision again highlights the risk that parties in a relationship can be deemed to be living in a de facto relationship even if they are not actually living together.

On 7 December 2016, the Honourable Justice Benjamin, sitting in Sydney, made preliminary findings that the parties, known as Mr Martens and Mr Bocca, were in a de facto relationship between November 2000 and October 2013 and that therefore the applicant, Mr Martens, could proceed to have his application for property settlement heard by the Family Court.

Mr Bocca had rejected the notion of a de facto relationship, stating that the parties had simply had a close friendship.

This case also highlights the importance of record-keeping for parties, as in this instance the parties exchanged so many text messages and emails, which were provided to the Court, that the Judge relied on this aspect of their relationship when considering “the nature and extent of their common residence” despite the fact that they maintained separate homes. He found that the parties spent one or two nights per week at the other’s home and travelled on holidays together.

The other key findings made by the Court included:

  1. Whether a sexual relationship existed – the Judge found that the parties did have a sexual relationship for the entire relationship, and again this evidence was supported by an extraordinary large number of text messages and emails containing highly sexualised comments and photos.
  2. Their degree of financial interdependence – the Judge found that while the parties had “relatively limited” financial interaction, there were facts to consider such as the opening of a joint bank account, the applicant being named trustee and member of the respondent’s self-managed superannuation fund, and the applicant assisting in furnishing, maintain and renovating the respondent’s properties. 
  3. The ownership, use and acquisition of their property – the parties had intended to purchase property together, and while ultimately a property was purchased by the respondent alone, the Judge found that the applicant was “intrinsically involved” in the acquisition of the property.
  4. The degree of mutual commitment to a shared life, mutual affection – the Judge found that the parties clearly “merged their lives”, referred to each other as “hubby” and “husband”, expressed intimacy and affection throughout their “breathtaking” amount of email and text message communications. They each provided for the other in their wills.
  5. Public aspects of the relationship – the relationship was found to be very public; they referred to each other as “partner” to their families, travelled together, and frequently attended family events together.

Finally, the breakdown of the relationship itself was a significant factor for the Judge, who described it as “tumultuous” and “highly emotionally charged”, unlikely to be so if simply the “friendship” the respondent stated it to be.

This case acts as a warning to parties in new relationships to consider their legal position even if not formally “living together”. Advice should be sought from an experienced family lawyer about how parties can protect their assets and reduce the risk of exposure to a claim down the track.

Shelley O'Connell