The law doesn't always have a clear definition of what
constitutes a de facto relationship. It's important as
recognised de facto relationships - including same-sex couples -
are treated the same as married couples in the courts.
The law has a range of guidelines to consider when determining a
couple is de facto such as how long a couple have been together,
whether they share finances and household chores, how they present
themselves to friends and family, if they jointly own property and
had children. There is no single criteria essential to prove a
couple are in a de-facto relationship.
The situation has just got a bit clearer after a court recently
ruled de facto does not mean the same as a couple who are simply
"friends with benefits".
A Family Court of Western Australia judge ruled a man and woman
were not in a de facto relationship even though they lived in the
same house and had regular sex over a 14 year period. They
socialised together and took short holidays together. They even
bought a property together.
But when the man married another woman, the spurned woman took
him to court arguing they were de facto and she was legally
entitled to a spousal division of the property.
They each owned several properties in their own name, and lived
in various properties as landlord and tenant. He gave her a rent
discount. They bought one property together. While the woman felt
they were a couple, the man saw it as a matter of convenience and
never intended it to be a long term relationship.
The judge ruled for the man, saying he might be
"dishonourable", but the woman had also benefited from
the "friends with benefits" arrangement.
The decision goes some way to arrest concerns that law changes
in 2008 would open the door for a secretly kept mistress to claim a
de facto relationship with a cheating husband. The criteria to be
regarded as de facto are valid even if one of the couple is married
to someone else.
Some argued this meant men or women with a lover or partner
outside their marriage could be open to legal action if that
partner decided they needed income support or a share of assets,
especially if a child is involved. There were fears it could also
lead to complications in deceased estates if an unknown lover or
children of the lover seek a share.
But it's now apparent having sex isn't enough to
determine a de facto relationship exists. You need to share the
washing up as well.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
A Court will consider all the facts around the trust and the property to determine if it should be in the asset pool.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”