Not all couples wish to marry, but commit themselves to each other. The term in which a couple who are committed and live in a domestic relationship together is referred to as a “de facto relationship”. In such relationships sometimes it is hard to pinpoint when the relationship commenced and when such relationship ended.
Such questions arose in the case of Weldon and Levitt (2017).
Short facts of this matter were as follows:
- Relationship between the parties was a relationship for approximately 12 or so years.
- The parties had two children together.
- The parties held no joint accounts.
- With the exception of 12 months the parties resided in separate residences, when residing in separate residences neither party shared expenses for each other’s households.
- The de facto wife claimed a single parent benefit from Centrelink during the period of the 12 year relationship.
- The de facto wife claimed child support for the parties’ children during the 12 year relationship. This was never challenged by the de facto husband, being the father of the two children.
- The parties did maintain an intimate relationship at times during the course of the 12 years and, attended some events together as a couple.
- During the course of the 12 years the relationship was characterised by domestic violence. The de facto wife sought protection of domestic violence orders for herself and the parties’ children.
At the conclusion of some 12 years of this relationship the de facto husband sought a property settlement. His application was that he receive 40% of the net proceeds of sale of the property owned by the de facto wife. The de facto husband lodged a caveat upon the de facto wife’s property. It was submitted by the de facto husband that the de facto wife’s property was the only significant asset of the parties and valued in the sum of $350,000.
The court was required to determine whether, based on all the circumstances and facts of the matter, the parties were in a de-facto relationship in order to ascertain whether their property interests could then be adjusted. In other words, the applicant had to convenience the court that the parties’ relationship was such that they were a couple living together on a genuine domestic basis.
Whether two people are in a de-facto relationship is dependent on a number of “criteria” found in the Family Law Act 1975 including but not limited to whether there was a common residence the parties shared, the existence of a sexual relationship, ownership and use of property, financial dependency and interdependency, and the degree of mutual commitment to a shared life, along with reputational and public aspects of the domestic relationship.
On balance, the court found that the parties had been in a “boyfriend/girlfriend” type relationship, but it could not be declared that they were in a de-facto relationship for family law purposes. The “de-facto” husband therefore was not considered a de-facto spouse and could not seek a property settlement against his former “girlfriend”.
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