De Facto relationship or just an affair?

The legal requirement surrounding the existence of a de facto relationship is one that is widely debated.

It is one which, on its face, appears quite simple: a de facto relationship is between two adults, either of the same or opposite sex, who are living together on a genuine domestic basis without being legally married to one another or related by family. Then, of course, there is the requirement for a property settlement that those two people must be living together for a period of at least two years. Simple, isn’t it? Well, not always.

The reality is that the circumstances of de facto relationships are not always black and white. Take, for example, the important 2012 decision of Jonah & White (Jonah & White [2012] FamCAFC 200 (and Murphy J’s first instance decision [2011] FamCA221). By way of brief summary, the parties had a 17 year intimate relationship. Throughout that time, the Respondent was married to another woman, with whom he had children. The relationship between the Applicant and the Respondent was secret, although he managed to spend every second or third weekend with the Applicant, and travel with her on overseas holidays.

Justice Murphy’s judgment, rejecting the claim that they had been in a de facto relationship for 13 of those years, provided very helpful guidance on the nature of a de facto relationship. In particular, he wrote that:

In my opinion, the key to that definition [de facto relationship] is the manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis”. It is the manifestation of “coupledom”, which involves the merger of two lives as just described, that is the core of a de facto relationship as defined and to which each of the statutory factors (and others that might apply to a particular relationship) are directed.

That decision has now been upheld by the Full Court. The appellate judgment deals with the grounds of appeal comprehensively but unfortunately offers very little guidance to trial judges about how to approach the determination of a de facto relationship in cases of this kind. There is no specific endorsement of Justice Murphy’s approach as quoted above. The most the court offers is the following:

His Honour’s conclusion that the proper focus of his determination was the nature and quality of the asserted relationship rather than a quantification of time spent together was, in our view, entirely correct.

It may be, however, that it is sufficient to treat Justice Murphy’s judgment as authoritative in terms of the merger of lives test. It is also clear that there is a significant difference between an affair and a de facto relationship, even if the Full Court didn’t quite manage to say so!

Do you have a question about family law or relationship law?

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