On 12 February 2018 our Prime Minister, announced that the Ministerial Code of Conduct had not been breached as a result of Ms. Campion being invited to take on positions with Senator Canavan and then Damien Drum after being moved from working with the Deputy Prime Minister, Mr. Joyce. He argued this is because at the time of her being offered these roles she was not Mr. Joyce’s partner. This is notwithstanding that her relationship with Mr. Joyce had apparently been in existence for some time and the reasons for the move was principally because of the personal relationship between her and the Deputy Prime Minister.
The purpose of this Blog is not to analyse whether there has been a breach of the Ministerial Code of Conduct. That question can be left to others.
The interesting question from a family lawyer’s perspective is whether a person can be in multiple relationships at one time. That is, is it possible to have a wife and a partner? Or, a husband and a partner? The short answer to this question is, Yes.
The Family Law Act provides at section 4AA(5)(e) as follows:
For the purposes of this Act (Family Law Act) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
It further provides, at section 4AA(1) :
A person is in a de facto relationship with another person if the persons are not legally married to each other and … having regard to all the circumstances of their relationship they have a relationship as a couple living together on a genuine domestic basis.
The Act sets out a number of factors to take into account to identify if there is a relationship as a couple. These include matters such as the duration of their relationship, the nature and extent of their common residence, whether a sexual relationship exists (as Rumpole famously put it, ‘staying in’ as opposed to ‘going out’), the degree of financial dependence or inter-dependence between them, the degree of mutual commitment to a shared life, the care and support of children etc. The list of factors set out is not a prescriptive list and are simply factors to consider when determining whether two people are in a relationship as a couple. Notably exclusivity is not on the list.
The next question is who may make an application for property settlement and on what basis?
In essence, is it possible to be in a position where your relationship with your wife has broken down and your relationship with your de facto partner has broken down and both parties are eligible to make an application for property settlement against you? The answer to this question is, Yes.
In relation to the de facto partner he or she may make an application pursuant to the relevant section of the Family Law Act if the court is satisfied:
- There was a de facto relationship;
- The period or the total of the period of the de facto relationship is at least two years; or
- There is a child of the de facto relationship (meaning the two-year period becomes irrelevant); or
- A party to the de facto relationship applying for property settlement made substantial contributions as defined in the Act and the failure to make an order or declaration would result in serious injustice to the applicant; or
- If the relationship is or was registered under a prescribed law of the State or Territory.
A person can be in a de facto relationship with another person or a marriage with another person but due to the circumstances of their relationship (or one of them) they may not have a substantial claim for property settlement. These two matters are separate.
Notably however the specific sections in the Act which deal with property settlement (whether arising from a married or defacto relationship) provide that where there are proceedings in which an application is made (by consent or otherwise) for an order for property settlement by one party against the other party to the first relationship, then the other party (who was in a relationship with one of the parties to these proceedings in a second relationship) is also entitled to become a party to those proceedings and can apply for property settlement.
In conclusion therefore:
- is it possible for the purposes of the Family Law Act to be in two relationships or more at one and the same time? The answer is, Yes.
- If you are in two relationships at one and the same time is it possible for both your partners if either or both those relationships broke down to make an application for property settlement against you? Again the answer is, Yes.
Is it prudent and appropriate to obtain legal advice from a specialist family lawyer if you are either a partner in a de facto relationship with a person who is in a married relationship, or you are a person in a married relationship and you are also in a de facto relationship, or you are in multiple de facto relationships? The answer is, Yes.