When are you in a De Facto Relationship?
Posted: 10th March 2013
Posted in: News
Posted by: Dean Evans, Partner
A recent matter heard in the Brisbane Registry of the Federal Magistrates Court dealt with whether parties were in a de facto relationship. This threshold test must be met in order for the parties seeking a property order to be able to proceed.
If parties are in a de facto relationship and separated after 1 March 2009, a claim can be made pursuant to the Family Law Act 1975.
In this case, the applicant, a Mr Betts, asserted that he and the respondent, a Ms Sheriff, lived in Brisbane together from 1995 until April 2010. If this was correct, this would bring his matter within the amendments made to the Family Law Act which provide for a claim to be able to be made for property orders in a de facto relationship if separation occurred after 1 March 2009.
The respondent, Ms Sheriff admitted that she had a relationship with Mr Betts but denied it was a de facto relationship as at 1 March 2009.
The court listed the matter for hearing to determine the preliminary issue of whether the parties were in a de facto relationship and whether the court had jurisdiction over the matter.
Defining a de facto relationship
The Family Law Act defines a “de facto relationship” as a couple living together on a genuine domestic basis in an arrangement in existence as at 1 March 2009. The applicant, Mr Betts, sought a declaration that the de facto relationship was in existence as at 1 March 2009.
The Federal Magistrates Court found that the parties did have a relationship for many years but the issue was whether they were in a relationship as a couple living together on a genuine domestic basis as at 1 March 2009 or after that date.
In cross-examination, the barrister for Ms Sheriff relied on a number of Centrelink documents pertaining to Mr Betts that refuted his assertion that the parties were in a de facto relationship. These documents referred to the parties as “flat mates”. The answers given to Centrelink were used to assess Mr Betts’ eligibility to Australian Centrelink benefits as a New Zealand citizen.
The judge was of the view that the Centrelink documentation damaged Mr Betts’ credibility.
The Court was of the view that:-
- Parties must establish the existence of relationship as a couple living together on a domestic basis.
- Until 2007, the parties did reside under the same roof and did have a sexual relationship. This relationship had ended before 1 March 2009 and did not resume again.
- If there was a sexual relationship after 1 March 2009, the parties were no longer under the same roof and it was “spasmodic, irregular and had probably totally ceased by March 2009”.
- The Centrelink documents confirmed that Mr Betts was claiming benefits as a single person.
- There was no evidence of intermingling of finances between the parties as at 1 March 2009.
- Mr Betts did not make any contributions to Ms Sheriff’s property.
- As at 1 March 2009 there was no commitment to a shared life.
- The public aspect of the relationship ceased in 2007.
The Court found that there was not a de facto relationship in existence as at 1 March 2009.
The application was dismissed.