Wiltshire News

Monday, 27 June 2011

Media, friends and family tend to get confused when discussing what constitutes a “de facto” relationship.

This issue was dealt with in a recent case of Jonah & White [2011] FamCA 221. This was a case where the Applicant sought a declaration that she had been in a “de facto relationship” with the Respondent.

The parties had been in a relationship for a period of 17 years however the Respondent had been married to a different woman for the entire duration of the relationship. The Respondent also had children to the woman he was married to. The parties lived separately, did not share any property and did not pool their resources. The Applicant would see the Respondent every two (2) to three (3) weeks for a couple of days.

Section 4AA of the Family Law Act 1975 (hereinafter “the Act”) provides us with a “meaning” of the term “de facto relationship”.

This section of the Act says that a person is in a de facto relationship with another person if:

• The persons are not legally married to each other;

• The persons are not related by family; and

• 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 goes on to provide “circumstances” that assist the Court when working out if you are in a de facto relationship and include any or all of the following:

• The duration of the relationship;

• The nature and extent of a common residence;

• Whether a sexual relationship exists;

• The degree of financial dependence or interdependence, and any arrangements for financial support, between the couple;

• The ownership, use and acquisition of property;

• The degree of mutual commitment to a shared life;

• Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

• The care and support of children; and

• The reputation and public aspects of the relationship.

No particular finding in relation to any circumstances above is to be regarded as necessary in deciding whether the parties were in a de facto relationship.

The section also goes on to say that a de facto relationship can exist between two (2) persons of different sexes and between two (2) persons of the same sex. It is also important to realise that a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

After looking at all of the evidence in the above mentioned case the Court decided that “in all of the circumstances they were not persuaded that the relationship between the parties was a de facto relationship as defined in the Act”. The Application was dismissed.

Please contact the team at Wiltshire Lawyers for further advice in relation to de facto relationships.


Emma Ludeke
Family Lawyer
Wiltshire Lawyers

Liability limited by a scheme approved under Professional Standards legislation.

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