By Ann Northcote, Director of Farrar Gesini Dunn.

In this month’s blog post, we look at whether or not there ever was a relationship for the purposes of the Family Law Act, and in particular property settlement and maintenance.

The English language is still yet to have the perfect words to describe each and every relationship that exists in modern society. “Husband”, “Wife”, and “Marriage” are easy, but for years our language has struggled to provide a word that best describes the parties to a defacto relationship.

The law has provided indicators as to whether or not parties are in a defacto relationship, as opposed to a “relationship”. The important indicators of a defacto relationship are:

  1. you are not married
  2. you are not related by family
  3. having regard to all the circumstances of their relationship, you have a relationship as a couple ‘living together on a genuine domestic basis’;

Also, it is important to note that you can be in a defacto relationship even if one of the parties is either:

  • Legally married to somebody else; or
  • In another defacto relationship.

You can, therefore, be in two relationships at once!

The law then looks at what those circumstances of the relationships might be and they include:

  1. duration;
  2. the nature and extent of their common residence;
  3. whether there is a sexual relationship;
  4. whether there was financial dependence, interdependence, or arrangements for financial support;
  5. the ownership, use and acquisition of their property;
  6. the degree of mutual commitment to a shared life;
  7. whether you had registered your relationship under the various State or Territory laws;
  8. care and support of children; and
  9. the reputation and public aspects of the relationship.

The law is also clear that these circumstances do not have to be given equal weight, nor indeed do they all have to be ticked off. A couple, for example, may not be having a sexual relationship due to age, ill-health or infirmity. Couples may “go out” or “date” for years without having any of the other circumstances and would never have regarded themselves as likely to be in a defacto relationship.

In relation to reputation and public aspects of the relationship, there are the old stories of the travelling salesman with one family in Sydney and one family in Perth who kept everything silent between the two. He would be regarded as having been in a defacto relationship with both of them despite the fact that much of each relationship was hidden from public view.

In the last few years a new phrase has appeared – “friends with benefits”. Are friends with benefits in a defacto relationship? Only time will tell.

For family law advice, contact Farrar Gesini Dunn.