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What is a de facto relationship? A summary of key principles and a discussion of the recent case of Herford and Berke (No. 2)

By Lisa Lahey and Fraser Bax / 27 February 2020

Disputes often arise about the existence of a de facto relationship as, unlike marriage, there is no formal marker of the relationship, which a marriage certificate provides. Colloquially, a de facto relationship evokes ideas of murky uncertainty and to an extent, the position at law is not dissimilar. A de facto relationship is necessarily different to a marriage relationship in terms of the Court’s ability to define when it begins and ends, particularly given de facto relationships are by nature fragile. 

Pursuant to s4AA of the Family Law Act 1975 (Cth), the foundational fact establishing the existence of a de facto relationship is whether the parties were ‘a couple living together on a genuine domestic basis’. Amongst other factors, the following circumstances are relevant, but not determinative, when establishing the existence of a de facto relationship:

  • the duration of the relationship, being a minimum of two years concurrent or total in order to bring an application for property settlement or maintenance under the Family Law Act, unless the parties have registered the relationship, have a child or have made significant contributions to the relationship;
  • whether the parties lived in the same residence together (generally cohabitation is a strong indicator of the existence of a de facto relationship, however it is possible for a de facto relationship to exist even without a shared residence for some or all of the relationship);
  • whether a sexual relationship exists;
  • the degree of financial dependence or interdependence between the parties;
  • the degree of mutual commitment to a shared life; or
  • whether there is a child of the relationship.

When called upon to characterise a de facto relationship, the Court will consider the ‘composite picture’ of the relationship. That is, it will consider all the factors and features of the relationship and give such weight to each factor as is appropriate. 

The Court has continually recognised that there is no ‘common experience’  but rather an almost infinite variety of combinations of circumstances which may result in the existence of a de facto relationship. As there is no precise formula for determining whether a de facto relationship exists, the Court will look to the facts and circumstances of each individual case. 

Recent decision in Herford and Berke (No. 2) [2019] FamCAFC 182

In the recent case of Herford and Berke (No. 2), the Full Court of the Family Court dismissed Ms Herford’s appeal against the decision of Judge Jarrett in the first instance that the relevant couple were no longer in a de facto relationship after they ceased living together. The issue on appeal was whether appropriate weight and consideration had been given to the nature and character of the relationship, as contended by the applicant, when making the declaration that the parties’ de facto relationship had broken down. 

Whilst it is not necessary for parties to occupy the same residence for them to continue to be in a de facto relationship, Judge Jarrett found this factor to be of particular significance given the decision to cease cohabitation was a joint decision, the parties’ visits to the other’s residence were prearranged and neither had a key to the other’s home.

When the parties started to reside separately, Ms Herford took up residence in another property owned by Mr Berke and did not ordinarily pay him rent, but they otherwise largely provided for their own day-to-day needs, occasionally slept at the other’s accommodation or shared meals, and were ‘non-exclusive’  in the view of Mr Berke, as he refused to commit to a long-term exclusive relationship or marriage. 

These factors were deemed to be inconsistent with a mutual commitment to a shared life together, and accordingly it was held that the parties stopped being in a de facto relationship from the point they ceased cohabitation. In his reasons for decision, Judge Jarrett confirmed that it is not necessary for either party to communicate that the de facto relationship is over, that the party agree with or accept the decision and that the relationship ceases despite one party trying to save it.

On appeal, the Court reaffirmed his Honour’s findings that whilst the party’s romantic relationship continued after they were living in separate residences, the relationship was not a de facto relationship. The Court was content that Judge Jarrett conducted an appropriate analysis of the nature and character of the party’s relationship as outlined above, which informed his conclusion that the relationship had changed to the extent that the de facto relationship no longer existed.

This recent case highlights the complexities of establishing and proving the existence of a de facto relationship in Court. If you have recently separated and consider that your relationship meets the threshold of a de facto relationship, you should seek legal advice.

For further information or discussion, please contact our Family and Relationship Law team. 

Authors
Lisa Lahey
Partner
Lisa is a Partner in our Family and Relationship law practice with over 25 years of experience advising on all facets of family law, including complex property and children’s matters.
Fraser Bax
Senior Associate
Fraser is a Senior Associate in our Family and Relationship Law practice.
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