Friends with benefits? A de facto relationship?

Where parties live in separate homes there can be no claim for a de facto property division between them, right? 

Wrong.

In the event of a de facto relationship (and the satisfaction of other specified threshold requirements) the Court can order a just and equitable property division between the de facto partners.  

Whether parties live together is merely one factor the Court considers in determining whether a de facto relationship existed. 

Examples

Where one party alleges a de facto relationship, the other party will often deny a relationship on the basis they were “friends with benefits”.

The Court will examine the nature and quality of the relationship and particularly whether the parties lived together on a genuine domestic.[1]

Case One

Two men had maintained separate homes and never formally lived together.  Nonetheless the Court found they had been in a de facto relationship for 13 years.[2] 

The men had spent a couple of nights together each week and taken overseas holidays together.

The Court relied heavily on:

  • the “breathtaking” number of intimate and affectionate text messages and emails exchanged between them – even up to 100 text messages per day;
  • their substantially monogamous sexual relationship;
  • the parties having had a joint bank account and that one party was the sole beneficiary of the other’s will;
  • the very public nature of the relationship.  The parties were invited to family weddings, funerals and other social functions as a couple.  They were referred to as “partner”, “hubby” or “better half”;
  • the discussions between the parties about creating a family and their plans for retirement.

Although the parties did not live together and there was a lack of financial interdependence, there was no question they had “merged their lives”. 

Case Two

The parties met while the applicant was working at a massage parlour.[3]  

The respondent denied a de facto relationship.

However, he had asked the applicant to stop working at the massage parlour and she did so, he stayed regularly at her home and he paid her $2,000 per month for her expenses and made other lump sum payments.

In addition, the respondent:

  •  underwent IVF treatment and then conceived a child with the applicant; and
  • entered into, and received legal advice on, a financial agreement which described the parties as being in a de facto relationship and pursuant to which he agreed to pay the applicant:
    • half of the value of his home within two years of the birth of their child;
    • $400 per week during their de facto relationship; and
    • $400 per week for the child and any reasonable expenses of the child until the child turned 18.

Although the respondent lived with his wife for the majority of the time, the Court was satisfied he had been in a de facto relationship with the applicant.  (At the same time the respondent and his wife separated, divided their property and divorced.)

Case Three

Unlike the two earlier examples, in this case the Court found there had been no de facto relationship.

Although the men had lived together for more than six of the eight years they had known each other, and a sexual relationship existed, there was no de facto relationship.[4  

The Court found the applicant had manipulated the respondent who had recently come out as a gay person and was seeking the support of friends. 

While the respondent had allowed the applicant to live at his properties, he had pursued other sexual liaisons.  The Court rejected the applicant’s evidence that he was not aware of the extent of the respondent’s sexual relations. 

There was little financial interdependence, no joint ownership or acquisition of property and no mutual commitment to a shared life.  The applicant had been on government benefits rather than being financially supported by the respondent.  

The respondent had been extremely generous in his support of the applicant but had acquired further properties in his own right (without the applicant’s involvement) and indeed acquired one property with another person.   The applicant did not know the respondent’s passwords for his computer or bank accounts and the respondent’s will contained no provision for the applicant.  

The respondent had also travelled extensively for work and the applicant did not accompany him at all throughout the eight years.  That situation was contrasted to when the respondent had been married and his wife had regularly accompanied him on work travel.   

Conclusion

Whether you live together or not is merely one factor to be considered in determining if a de facto relationship exists.  If you do not live together, that will not necessarily prevent a property division claim from an ex-partner. 

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[1] The Court will consider these matters by reference to:

  • the duration of the relationship;
  • the nature and extent of their common residence;
  • whether a sexual relationship exists;
  • the degree of financial dependence interdependence, and any arrangements for financial support, between them;
  • the ownership, use and acquisition of their property;
  • the degree of mutual commitment to a shared life;
  • whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
  • the care and support of children;
  • the reputation and public aspects of the relationship.

[1] Martens & Bocca [2016] FamCA 1044

[2] Sha & Cham [2017] FamCAFC 1 61

[3] Regan & Walsh [2014] FCCA 2535