02 9635 4266

Family lawyers & divorce lawyers

In a recent case in the Family Court, Judge Harman found that a man and a woman who had a child, owned a home together and lived in it for 13 years were not in a de facto relationship.

More and more frequently, de facto relationships are being viewed as fundamentally similar to that of a marriage. This has become more acceptable since the Family Law Act was reformed to include provisions relating to parenting and financial arrangements. However, this decision brings that view into question.

Legally, when making a decision about the status of a relationship, judges have to consider a number of factors outlined in the Family Law Act and decide based on those criteria. These are outlined in section 4AA(2) of the Act and include factors such as the duration of the relationship, the nature and extent of their common residence, whether a sexual relationship exists, degree of financial dependence or independence, ownership, use and acquisition of their property and the care and support of children. This list is certainly not exhaustive, with other factors also playing a role in the decision making process.

The woman of the relationship "Ms Benedict" claimed that the couple were in a relationship and had lived together from 1992 to 2010. She claimed that they had shared a bed and were in a marriage-like relationship. She has been claiming Centrelink benefits and filing her tax returns as a single parent and had neglected to list the man of the relationship, Mr Peake, as father of their child on the child's birth certificate.

Mr Peake alleged that the two had never been in a de facto relationship and that their living arrangement was simply a matter of convenience for their daughter. He claimed they lived in separate bedrooms, that he ate separately from Ms Benedict, attended to his washing at Laundromats and the like and generally lived and maintained his own lifestyle.

Aside from the mortgage, which Mr Peake took care of, the parties were financially independent.

The crux of the issue for Mr Peake was that the relationship was not maintained in a way that could be described as marriage-like. Judge Harman found that "a de facto relationship may be describes as 'marriage like' but it is not a marriage and has significant differences socially, financially and emotionally." This is a stark contrast to the view that is implied by the property and parenting provisions that now reside in the Family Law Act.

Have these provisions been misconstrued in their function, or has Judge Harman made an error in deciding that the relationship did not amount to a de facto relationship for the purposes of section 4AA(2) of the Family Law Act? It's difficult to tell, however, his reasoning for his decision, that emotionally a de facto relationship isn't the same as a marriage, does make some sense. What is clear, however, is that the judgment is one that jars with the common interpretation of section 4AA(2) of the Family Law Act.

64 ‘queries’