Last month’s article discussed the difficult question that can arise as to the duration of a relationship, as duration is significant with respect to property settlement and spousal maintenance.
This month, however, we look at what is an even more difficult question that needs to be resolved. This issue is whether or not there ever was a relationship.
In matters relating to children, the jurisdiction of the Family Court is not limited by whether or not the parents were in a relationship. The Family Court can make orders with respect to children whether their parents were married, never married, lived together, never lived together, etc. The only children for whom the Family Court cannot exercise jurisdiction are those who at the time are subject to State welfare laws.
However, the property and spouse maintenance jurisdiction of the Court can only be involved if you have been married or in a defacto relationship (heterosexual or same sex).
The English language is still yet to have the perfect words to describe each and every relationship that exists in modern society.”Husband”, “Wife”, and “Marriage” are easy, but for years our language has struggled to provide a word that best describes the parties to a defacto relationship. I do not think that many people would say, when being introduced, “Hello. I am Jane and this is my defacto husband John”. Other titles are ambiguous:
* Boyfriend/girlfriend – they might be just “dating” or “going out” or they could have been living together for the last 10 years with three children.
* Significant other – the less said the better.
* Lover – this one has way too many connotations that you are engaged in an affair.
* Partner – this one is very risky for those in business together.
The law has provided indicators as to whether or not parties are in a defacto relationship, as opposed to a “relationship”. There are four very important indicators of a defacto relationship. The first, of course, isthat you are not married; the second is that you are not related by family (and there is a specific definition as to what this is); the third is, having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis; and the fourth, that you can be in a defacto relationship even if one of the parties is either:
1. Legally married to somebody else; or
2. In another defacto relationship. You can, therefore, be in two relationships at once.
The law then looks at what those circumstances might be and they include duration; the nature and extent of their common residence; whether there is asexual relationship; whether there was financial dependence, interdependence, or arrangements for financial support; the ownership, use and acquisition of their property; the degree of mutual commitment to a shared life; whether you had registered your relationship under the various State or Territory laws; care and support of children; and the reputation and public aspects of there relationship.
The law is also clear that these circumstances do not have to be given equal weight, nor indeed do they all have to be ticked off. A couple, for example, may not be having a sexual relationship due to age, ill-health or infirmity. Couples may “go out” or “date” for years without having any of the other circumstances and would never have regarded themselves as likely to be in a defacto relationship.
The nature and extent of their common residence is an important one. You do not have to have lived exclusively together in the one home to be found to be in a defacto relationship. In relation to reputation and public aspects of the relationship, there are the old stories of the travelling salesman with one family in Sydney and one family in Perth who kept everything silent between the two. He would be regarded as having been in a defacto relationship with both of the them despite the fact that much of each relationship was hidden from public view.
In the last few years a new phrase has appeared – “friends with benefits”. Are friends with benefits in a defacto relationship? Only time will tell. For family law advice, contact
Farrar Gesini Dunn.
For Family Law Advice contact
Farrar Gesini Dunn
Level 5, Colonial , Mutual Building
17-21 University Avenue, Canberra City ACT
P (02) 6257 6477 | F (02) 6257 4382
E [email protected] | www.fgd.com.au