In the case of Pike & Howlett [2010] FMCAfam 802,the Federal
Magistrates Court of Australia was recently asked to decide what
constitutes a de facto relationship under the Family Law Act 1975 (Cth)
(‘the Act’)?
The facts:
Mr Pike and Ms Howlett entered into
a romantic relationship in or about 2002 and started living together in
March of that year.Friends and family often heard them refer to each
other as either boyfriend/girlfriend or partner.Initially their finances
were not intermingled: they kept separate bank accounts and maintained
individual responsibility for their own financial matters.
By the
end of 2002, Mr Pike and Ms Howlett came to share finances – they
became financially and emotionally interdependent.By 2007, Ms Howlett’s
parents were invited to move into the couple’s home to live.
There
is little more information from the case however Mr Pike and Ms Howlett
agreed that their relationship ended in March 2009.
The case:
The
matter went to court because Mr Pike and Ms Howlett could not agree on
the date of the commencement of their de facto relationship.The parties
asked the court to identify that date to assist in assessing
contributions in their pending property/financial case.
The case
ran for two days, involved several witnesses and testimony about whether
Mr Pike and Ms Howlett entered the relationship for convenience, for
sexual purposes only or on a genuine domestic basis.
The law:
There
are two starting points for determining what constitutes a de facto
relationship under the Act.The first is section 60EA which reads:
a person is a de facto of another person if the person is in a de facto relationship with the other person.
and, the second is section 4AA which reads:
1. A person is in a de facto relationship with another person if:
>> the persons are not legally married to each other; and
>> the persons are not related by family (see subsection (6)); and
>>
having regard to all the circumstances of their relationship, they have
a relationship as a couple living together on a genuine domestic basis.
Paragraph (c) has effect subject to subsection (5).
Working out if persons have a relationship as a couple
1. Those circumstances may include any or all of the following:
>> the duration of the relationship;
>> the nature and extent of their common residence;
>> whether a sexual relationship exists;
>> the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
>> the ownership, use and acquisition of their 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;
>> the reputation and public aspects of the relationship.
2.
No particular finding in relation to any circumstance is to be regarded
as necessary in deciding whether the persons have a de facto
relationship.
3. A court determining whether a de facto
relationship exists is entitled to have regard to such matters, and to
attach such weight to any matter, as may seem appropriate to the court
in the circumstances of the case.
4. For the purposes of this Act:
>> a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
>>
a de facto relationship can exist even if one of the persons is legally
married to someone else or in another de facto relationship.
