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De-Facto relationships or "Friends with Benefits"?

September 2018

Whenever I ask clients when their de-facto relationship commenced, the response is often along the lines of “well we’ve been together for about four years, but we’ve only been living together for just over a year”. I often advise my clients that being in a de-facto relationship does not just mean sharing the same home. From there I usually need to ask when they considered their relationship became serious and several other questions to get an understanding of the nature of their relationship. These questions may seem unnecessarily intrusive to some, however when it comes to relationship property matters it can be crucial. 

As many of you are aware where de-facto couple separate after being in a relationship of three years or more there is a presumption that all relationship property is shared equally. Although there are some limited exceptions to this, in most circumstances the equal sharing provisions will prevail. Whether you are seeking legal advice to contract out of the usual equal sharing provisions of the Property (Relationships) Act 1976 (“the Act”) or you are recently separated and need to settle relationship property matters it is vital to determine the length of your de-facto relationship. 

The Act states that a couple will be in a de-facto relationship if both parties are eighteen years or over AND the parties live together as a couple AND the parties are not married to or in a civil union with each other. To determine whether a couple are living together as a couple the Court will take into account a range of matters set out in the Act. 

In a 2017 case the High Court reiterated that when determining whether there is a de-facto relationship the criteria set out in the Act “…are not exhaustive and that…..a Court is entitled to have regard to such matters and attach such weight to any matter as may seem appropriate to the Court in the circumstances of the case…..what is required of the Court is an ‘evaluative approach applying a commonsense judgment to the particular case”.

In this case Mr L contended:

  • He and Ms M were in a sexual relationship from early 2008;
  • They had lived together from around the end of 2008 at two different properties; 
  • Mr L supported Ms M in her nursing studies; 
  • They attended family and social functions together and holidayed together; 
  • Mr L provided financial support to Ms M by carrying out domestic chores, paying for food, petrol, repairs and maintenance expenses and undertaking renovation work on the second property; 
  • The parties had a joint back account and took out mutual life insurance policies; 

By contrast although Ms M accepted that they had a friendship and casual sexual relationship, her firm position throughout the Court proceedings was that she had not made any long-term commitment to Mr L. She further stated that contrary to her wishes, Mr L was trying to control her life and her property.

The Court found Ms M’s evidence more credible and concluded that while Mr L may genuinely have believed they were in a de-facto relationship, Ms M wished to retain her independence stating that: Ms M’s relationship with Mr L was one that was convenient to her but casual. It may even have been exploitative but that did not, as a result, mean it was a de-facto relationship… this was a situation of “‘friends with benefits’ rather than of a couple creating a mutual commitment to a shared life for the future.”

The case highlights that whether a couple are in a de-facto relationship or not is far from clear cut. It certainly confirms that a shared residence alone is not the sole or even primary factor in deciding whether a de-facto relationship exists or not. Ultimately in cases of this nature the Court has a broad discretion to make a decision based on the evidence before them. It is essential that you see us at an early stage to best protect your assets.