In the era of late-night Tinder swipes and situationship TikToks, Australia’s family law courts are playing referee in disputes where the label of “de facto” is anything but straightforward. For many litigants, what was just a casual relationship, a loving friendship, or a ‘friends with benefits’ arrangement can suddenly become a major legal headache, as to whether a de facto relationship exists will determine if some sort of financial orders can be made.
Panadol in hand… and ready to explore how the Family Law Act and recent cases determine whether you’re de facto, is Kathryn Kearley, College of Law lecturer, family law specialist, and our regular Family Law contributor.
Let’s start with section 90RD of the Family Law Act
Section 90RD of the Family Law Act 1975 (Cth) provides a key legal mechanism for the court to decide if a de facto relationship existed between two parties when certain applications are made concerning property adjustment or maintenance orders.
“When an application is made under sections 90SE, 90SG, 90SM, or a declaration sought under 90SL – for example, related to property settlement or spousal maintenance – the applicant claims that a de facto relationship existed with another person,” Kathryn explains.
“If this claim is disputed, a party can ask the court to declare whether a de facto relationship did or did not exist between them.”
This declaration is crucial because it determines whether the court has jurisdiction to make financial or property orders under the Family Law Act.
“What the court is looking for is evidence of a genuine shared life,” Kathryn says.
This means weighing up a range of factors in the legislation, with the court having to consider the following:
- The duration of the relationship.
- The nature and extent of common residence.
- Whether a sexual relationship exists.
- The degree of financial dependence or interdependence between the parties, including financial support arrangements.
- Ownership, use, and acquisition of property.
- The degree of mutual commitment to a shared life.
- Whether the relationship was registered under state or territory law.
- Care and support of any children of the relationship.
- The reputation and public aspects of the relationship, such as how the parties presented themselves socially.
“Importantly, no single factor is determinative or required for the court’s decision,” Kathryn says. “Instead, the court, on the evidence put forward, evaluates all of the circumstances and attaches such weight to each factor as appropriate.”
'Friends with benefits'? In court, that’s usually 'friends without benefits'
There’s enduring confusion about where casual intimacy crosses the legal Rubicon. As Kathryn observes: “The cases show a trend. An applicant, when things go awry, seeks some compensation and so asserts a de facto relationship existed, but the respondent denies this, saying they were ‘just friends’, ‘friends with benefits’, having an affair, or simply a fling.”
In the case of Jonah & White [2011] FamCA 221, the applicant (Ms Jonah) engaged in an intimate relationship with Mr White, which they kept secret for 17 years. During their relationship, Mr White financially supported Ms Jonah with payments of $2000 a month, which increased to $2,500, and eventually $3000 a month. He paid $24,000 to help Ms Jonah buy a home, and they even holidayed overseas together. They saw each other regularly.
Murphy J, examining the case, emphasised that the critical question under section 4AA of the Family Law Act is whether the parties had ‘so merged their lives that they were, for all practical purposes, living together as a couple on a genuine domestic basis.’ Essentially, the manifestation of ‘coupledom’.
While the judge did not accept Mr White’s argument that a de facto relationship requires ‘exclusivity’ to exist, the judge dismissed the application, concluding this was an affair, not a de facto relationship. The pair maintained separate lives and socialised in secret.
“The essential element of living together as a genuine domestic couple, publicly and substantially merging their lives, was missing,” Kathryn explains.
Conversely, a ‘convenient commercial [live-in] arrangement’ between an employed carer/personal assistant and disabled respondent, raised in the case of Barry & Dalrymple [2010] FamCA 1271, was not found to be a “de facto relationship.’
“What’s clear is that the threshold has to be met for a court to rule a relationship to be de facto,” Kathryn says. “Cases involving long-running open relationships, even one that, in the case of Jones & Michetti [2022] FedCFamC1F 771, continued for 16 years, don’t meet this threshold. Even a relationship that resulted in two children, albeit unplanned, did not qualify, as we’ve seen in Swinbank & Stein [2022] FedCFamC1F 682.”
“What’s missing in these cases is an absence of a shared residence, no joint ownership of assets or financial interdependence, or presenting to the public as a couple,” Kathryn says.
A case that did meet this threshold was Martens & Bocca [2016] Fam CA 1044. Here, the fact that this was a substantially monogamous relationship, in which both parties publicly referred to each other as ‘partner’ or ‘hubby’, including at family functions, regularly met throughout the week, and travelled overseas together, had some financial interdependence, and planned to purchase a property together amounted to a de facto relationship.
Indeed, the respondent even made the applicant a beneficiary of their will, referring to the applicant as their ‘partner’ in the will.
More than Netflix and (committed) chill
In our app-happy era of dating, Netflix and chill, commitment, and everything in between, when it comes time for a court to review whether two people are a de facto couple, the question is challenging and the financial implications are very significant, as without there being a de facto relationship, there is no basis for any family law financial orders.
“The Court looks at the full picture in each case,” Kathryn explains. “A de facto relationship means the people have genuinely merged lives – financially, socially, and domestically. It’s more than sharing moments of intimacy, a stolen night out or holidays away, or sneaky texts. The focus is on tangible evidence of a shared life: public recognition, shared living arrangements, some financial interdependence, and mutual commitment. So it’s often a complex question.”
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