Are we de facto partners or just friends with benefits?

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There have been significant changes in the law and society’s attitudes towards marriage and de facto relationships over the course of the past 30 years. This was underlined when the Property (Relationships) Act 1976 (the Act) was amended in 2002 to provide the same protection to de facto partners, whether heterosexual or same sex, as had until that time been afforded to spouses.

This is great for those of us who do not wish to enter into a relationship sanctified by church or state (for whatever reason) but do have a committed life and bond with our partners. However, there are others who are quite content having their relationship within the realms of the casual and relaxed who may be shocked to hear that it has, in fact, become a relationship that may be recognised as de facto.

In an earlier article we looked at what kind of factors may be taken into account in determining if you are in a de facto relationship. But as the concept of “friends with benefits” gets further entrenched into our accepted views of relationships, it is perhaps time to take a closer look at when your relationship may be considered to have moved from simply being just casual to something far more intertwined and committed.

A de facto relationship is deemed as being when both parties to the relationship, whether it be heterosexual or same sex, are over the age of 18 and they are living together as a couple. When it comes to determining whether a de facto relationship exists, the largest debate isn’t going to be whether you’re over 18 or not – it’ll be over when you started living together as a couple.

To recap, the factors that will be taken into consideration by the court will include:

  • the duration of the relationship
  • whether they live in the one house
  • whether they have a sexual relationship
  • the degree of financial dependence or interdependence
  • the ownership, use and acquisition of the property
  • the degree of mutual commitment to a shared life
  • the care and support of children
  • the performance of household duties
  • the reputation and public aspects of the relationship.

This is not an exhaustive list of those matters that may be taken into consideration. Nor is it necessary that a finding in respect of any one or a combination of these factors is necessary to find the existence of a de facto relationship. In one case it may be that a single factor may be decisive, whereas in another an accumulative approach may be what is called for.

Of course a couple may be friends, lovers, boyfriend and girlfriend, FBs, landlady and boarder, companions and so forth without being de facto partners. Certainly there are many relationships in which the participants could genuinely claim to be uncertain as to whether or not they come within the statutory definition.

So what sort of things do couples usually see as being significant (and are they potentially way off base in their thinking)?

But we live in our own homes?

Sharing a common residence is not a necessary condition of living together. It is possible that a couple could maintain two separate residences, yet because of their financial interdependence, the presence of children (whether that be children of the relationship or children of just one of the partners), and the way they hold themselves out as a couple, they could be regarded as being in a de facto relationship.

Of course, couples that do not live together, maintain complete financial independence and do not pool their resources are unlikely to be regarded as living in a de facto relationship.

Sex anyone?

A sexual relationship, as nice as it may be, is NOT necessary for there to be a finding that a de facto relationship exists. It is possible to have a de facto relationship without having a sexual relationship.

For example take a look to an elderly couple, establishing a “winter relationship” for companionship which includes most of the characteristics of a de facto relationship (including mingling their finances, buying a house together and going out in public together) but does not include sex.

And hey, let’s be honest, there are plenty of marriages out there where there isn’t any, to quote Mike Posner, “bow chicka wow wow” going on.

The fact is the issue of whether a relationship is a de facto relationship in terms of the Act and the date that it began will be questions of fact for the Court.

One of the key things a court will consider is if there is a mutual commitment between the parties to a shared life, whether they are both of the same mind or view as to where their relationship is at and how that is held out to the world. For example, a court has in the past looked at such factors as:

  • sharing holidays
  • attending family functions
  • being in attendance at the other’s office functions
  • choosing pets together
  • appointing the other party as a director or shareholder of a company
  • attending the other’s sport events
  • attending seemingly mundane events with the other party.

Clearly, the more independent the parties are of one another the more likely there is to be a finding that there is an absence of mutual commitment to a shared life, and perhaps the more likely they’ll be seen as no more than friends with benefits.

So what does the case law tell us? The case law reveals as human beings the fascinating selection of relationships and the apparently endless ability we have to involve ourselves in all manner of tangles and circumstances. In every case a fact specific enquiry will be undertaken by the court and it is almost impossible to provide any universal principals from the cases that could be applied in each and every situation.

What is clear is a de facto relationship involves more than merely living together or having a sexual relationship. In assessing when a de facto relationship commenced it is less important to determine precisely when the parties started to share the same accommodation or the same bed as it is to drill down on when the relationship assumed a significant degree of mutual commitment and permanency and at which their lives became significantly intertwined and shared.

If you are in a relationship, or if you know someone who is in or starting a new relationship, and in particular if you have assets that you want to protect, seek advice from your lawyer.