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									Defining De Facto Relationships in Western Australia
Authors: Andrew Davies & James Claringbold
Publish Date: December 19, 2008

In recent years, there has been a shift in some of the commonly-held ideals concerning marriage
and the marriage partnership.

As an indication of this shift, more couples are choosing to live together prior to marriage or in
contemplation of marriage. Similarly, more couples are choosing not to get married at all, but to
nonetheless live together in a marriage-like relationship.

The various State legislatures have introduced statutory provisions that reflect and react to the
growing significance of de facto relationships. In Western Australia, de facto partners now
enjoy the same financial rights as married couples (with the exception of splitting superannuation
interests).

As there is no ceremony or registration, the question arises: what exactly constitutes a de facto
relationship for the purposes of Family Law in Western Australia?

De facto relationships – determining factors under the Family Court Act 1997

The Family Court of Western Australia has jurisdiction in relation to de facto relationships by
virtue of the Family Court Act 1997 (“Act”).

Under the Act, a court may only make financial orders in respect of a de facto relationship
where:

   The relationship has existed between the parties for at least of 2 years, and both parties have
    resided in Western Australia for at least one third of the duration of that relationship (see
    section 205Z(1)(a) of the Act); or
   There is a child of the relationship who has not yet attained the age of 18 years, and failure to
    make orders would result in serious injustice to the partner caring or responsible for that
    child; or
   The applicant has made substantial financial, non-financial or family welfare contributions in
    Western Australia, and failure to make orders would result in serious injustice to the
    applicant.

While the Act makes it clear the Family Court only has jurisdiction in respect of de facto
relationships falling within the categories outlined above, it is silent as to the definition of what
exactly constitutes a “de facto relationship”.

De facto relationships - determining factors under the Interpretation Act 1984

Unfortunately, there is no comprehensive definition of what is a de facto relationship.

However, guidance as to this issue can be found under section 13A of the Interpretation Act
1984 (“Interpretation Act”), which states the following:
      A reference in written law to a de facto relationship shall be construed as a reference to a
       relationship (other than a legal marriage) between 2 persons who live together in a
       marriage-like relationship.
      The following factors are indicators of whether or not a de facto relationship exists
       between 2 persons, but are not essential:
           o the length of the relationship between them;
           o whether the 2 persons have resided together;
           o the nature and extent of common residence;
           o whether there is, or has been, a sexual relationship between them;
           o the degree of financial dependence or interdependence, and any arrangements for
               financial support, between them;
           o the ownership, use and acquisition of their property (including property they own
               individually);
           o the degree of mutual commitment by them to a shared life;
           o whether they care for and support children;
           o the reputation, and public aspects, of the relationship between them.

De facto relationships - marriage-like relationship

The pivotal requirement under the Interpretation Act for the existence of a de facto relationship
is that the parties live together in a “marriage-like relationship”.

In the case of Hibberson v George (1989) 12 Fam LR 725, Mahoney JA held that an essential
requirement of a de facto relationship is that the parties live or have lived together on a genuine
and bona fide domestic basis.

In the case of MW & Director-General of the Department of Community Services [2008] HCA
12 (28 March 2008), Gleeson CJ said that “living together” is not of itself sufficient to establish
the existence of a de facto relationship.

Further, in some cases, a de facto relationship does not necessarily require that the parties live
together in the same house (for instance, having a girlfriend or boyfriend while still living with a
wife or husband, or long-term relationships conducted from far away or interstate).

De facto relationships – other indicators

The Courts will consider all relevant circumstances in determining whether parties live or have
lived together on a genuine and bona fide domestic basis.

Nature and extent of common residence:

In the case of J v S [2003] QDC 436, Dodds J noted that de facto legislation does not require
parties to be physically in one place for the entire period.

In the 2004 case of Greenwood v Merkel (2004) 31 Fam LR 571, the NSW Supreme Court held
that a 6 year relationship in which the parties maintained separate residences but spent most
nights of the week together at either residence (with the exception of a 6 month period in which
the one party stayed on a full time basis in the other’s residence) was a de facto relationship.

Sexual relationship between the parties:

In the case of M v G [2006] FCWA 1, Thackray J noted that sexual intercourse is not a strong
indicator of a de facto relationship, and is in fact common amongst those in no relationship at all.
Financial interdependence and use / ownership of property:

The Court will consider the degree of financial interdependence between the parties, and look
carefully at evidence such as:

      Legal documents showing joint finances and commitment;
      Banking arrangements;
      Pursuit of joint or individual financial goals;
      Description of marital status on Tax Returns;
      Method and responsibility for payment of living expenses.

Degree of mutual commitment to a shared life:

Mutual commitment to a shared life may indicate a de facto relationship, with relevant factors
including:

      Discussions between the parties concerning future plans for the relationship;
      Sexual fidelity during the relationship;
      Telephone calls by one party to the other’s workplace;
      Joint holidays;
      Assistance to the other party in their business;
      Engagement.

Reputation and public aspects of the relationship:

It is necessary to consider both how the parties hold their relationship out to the public, and
indeed how the public views their relationship:

      Attendance by the parties at family events such as Christmas, birthdays, weddings and
       funerals together;
      Announcements to family and friends concerning the relationship;
      Evidence from neighbours or third parties (eg real estate agents) concerning the
       perceived nature of the relationship;
      Who answers the phone at the residences of the parties;
      Visiting relatives together;
      Degree of public affection;
      How each party refers to the other in public.

Conclusion

The question of whether parties live or have lived together on a bona fide domestic basis is
complex and must not be considered in isolation to the surrounding circumstances.

In other words, when considering whether a relationship is de facto in its nature, it is essential to
give due attention to the totality of relevant circumstances and not simply the extent and
frequency of cohabitation between the parties.

By Andrew Davies and James Claringbold

								
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