Could you be living in a defacto relationship

Could you be living in a defacto relationship without even knowing it?

by Natasha Orr, Senior Associate

In the recent case of Crick & Bennett [2018] FamCAFC 68, the full Court of the Family Court found that the parties had been living in a defacto relationship for some 13 years, despite the defacto husband believing that the parties had separated after about 2 years.

The defacto husband’s case was that the parties had been in a defacto relationship between early 2002 and February 2004. The parties had a child together in late 2003. The defacto husband said that, shortly thereafter the parties separated but remained living together. The parties continued to live under the one roof until 2014 when the defacto husband re-partnered.

The defacto wife’s case was that the parties had been in a defacto relationship for a period of 13 years between 2001 and 2014.

Notably, the Court agreed with the defacto wife despite the following:

  • For the duration of the relationship, the parties did not acquire any joint property, acquired no joint liabilities and had no joint bank accounts. They each retained their respective property and were responsible for the outgoings in relation to it.
  • The parties agreed that they had not slept in the same bed or had any sexual relationship since 2004 (on the defacto husband’s case) or 2005 (on the defacto wife’s case);
  • Since 2004, the defacto husband had paid money to the defacto wife which the defacto husband said was ‘board’. The defacto wife argued that this was simply his contribution to living expenses.
  • The parties did not dine out alone or holiday together.

So how could the Court find that they were living together as a couple on a genuine domestic basis?

The Family Law Act sets out a number of considerations which are to be taken into account when determining whether a defacto relationship exists.

The Full Court of the Family Court confirmed that “ a finding as to whether or not a de facto relationship exists depends upon an assessment of all of the circumstances of the relationship, with each circumstance to be given such weight as the court considers appropriate ”

In this case the Court found that the defacto husband’s evidence was less credible than that of the defacto wife and the Trial Judge stated “ I find that the parties by their conduct demonstrated a degree of mutual commitment to a shared life, supported and cared for their child, provided practical and financial assistance and support for each other and their child ”.

The Trial Judge referred to the evidence of the public aspects of the parties’ relationship including:

  • That the parties had attended events together with their child, including family barbeques and Christmas celebrations; and
  • That the parties had dinner with friends together and, on at least one occasion, attended dinner at the home of parents of children from their child’s school.

The wife’s sister was called to give evidence in relation to the ‘publicness’ of their relationship.

Further, the Trial Judge did not accept that the defacto husband had communicated that the relationship was at an end in 2004. Whilst the defacto husband argued that he had told the defacto wife that he wanted to separate in 2004, and that he agreed to remain living with the defacto wife to help her financially, the Court preferred the wife’ evidence that there had been no such discussion.

The Full Court of the Family Court upheld the Trial Judge’s decision on appeal and this matter will now proceed to a Trial to determine the defacto wife’s entitlements.

This decision confirms the importance of parties seeking legal advice upon separation so as to protect their interests.

If you are separated or considering separation, contact Fedorov Lawyers for advice relevant to your specific case. Or, if you are in a relationship and wish to protect your property and assets against a claim, contact us for advice as to how this can be achieved.

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