It is possible to be married and to have a partner who meets the definition of being a de-facto partner.
The court applies “elements” to determine whether, having regard to all the circumstances of the relationship that a couple “lived together on a genuine domestic basis”.
For example the court will look at aspects of the relationship such as:
- The length of the relationship;
- The nature and extent of the common residence;
- The financial relationship between the parties;
- Whether there was a sexual relationship;
- Whether the parties acquired property and how they improved or used those property assets during the relationship; and
- Whether there was a mutual commitment to a shared life.
The court applies its discretion as to the weight it will give to each of the “elements” of the relationship, however, in other words not every characteristic described above will need to be met for a de-facto relationship to exist.
The recent Family Court case of Sha & Cham FamCAFC161, upheld that a married man was found to be in a de-facto relationship with a sex worker whom he had a short relationship with from August 2012 until September or October 2013.
The short facts of the case are as follows:
- The parties did not have a common residence but they spent significant and regular time together at the de-facto wife’s residence and maintained a sexual relationship;
- The de facto wife stopped working and the de facto husband made periodic and lump-sum payments to her as well as paying the school fees of her daughter;
- The parties did not purchase any property together but the de facto husband had purchased a lounge and armchair for his use at the de facto wife’s property;
- Both parties agreed to conceive a child through IVF demonstrating a commitment to shared life;
- The parties entered into a financial agreement which referred to the parties as being in a de facto relationship even after 4 months.
Obviously this case had a unique set of circumstances but nonetheless it shows that the court carefully assessed all the facts and circumstances of the case and found that on balance, a de facto relationship did exist, despite it being of a short duration and strongly contested by the de-facto husband.
At Everingham Solomons we have the expertise and experience to assist you with all family law and de facto matters because Helping You is Our Business.
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