When does an intimate relationship amount to a de facto relationship?

In the New South Wales case of Newland & Rankin1, the Federal Circuit Court was asked to determine whether or not a casual relationship over five years was in a fact a de facto relationship.

According to s 4AA of the Family Law Act 1975, the relevant Act in this case’s jurisdiction, a person is in a de facto relationship with another person if:

  1. the persons are not legally married to each other; and
  2. the persons are not related by family; and
  3. having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.2

Summary of facts and findings

In this case, Mr Newland and Ms Rankin commenced an intimate relationship in April 2003 and lived together for intermittent periods of time. Mr Newland attempted to persuade the Court that the parties had been in a de facto relationship since 2003, and that despite the fact that he had been seeing other women during this time, he had always considered Ms Rankin his “primary relationship”. Ms Rankin argued that the de facto relationship only commenced in 2008, when Mr Newland “committed” to the relationship, despite their ongoing intimate relationship and having lived together for intermittent periods of time prior to 2008.

Judge Hughes found that the parties only entered into a de facto relationship in around May 2008 when Mr Newland moved into the home of Ms Rankin. Before that, the parties enjoyed an intermittent casual intimate relationship, had no shared finances, acquired no property together and there was no mutual commitment to a shared life, as demonstrated by Mr Newland’s rejection of Ms Rankin when she was pregnant with his child in 2007, leading to its termination.3

Lavan comment

In Western Australia, de facto relationship legislation is provided for by section 205Z Family Court Act 1997 (WA) together with section 13A Interpretations Act 1984 (WA). In Western Australia, two people living in a “marriage-like relationship” rather than “genuine domestic basis” are deemed to be in a de facto relationship.4

In deciding whether or not a de facto relationship exists in Western Australia, the court has discretion to consider the following factors, and attach weight to them as it deems appropriate:

  1. the duration of the relationship;
  2. the nature and extent of their common residence;
  3. whether a sexual relationship exists;
  4. the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
  5. the ownership, use and acquisition of their property;
  6. the degree of mutual commitment to a shared life;
  7. whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
  8. the care and support of children;
  9. the reputation and public aspects of the relationship.5

While the existence of an intimate relationship is a factor, no single factor can establish a de facto relationship. As observed in Newland & Rankin, a finding of any of these factors may be outweighed by evidence showing the absence of other factors.

We note this article is general information and should not be relied upon as specific legal advice.