Beware Suburbia Fence Romance, Part 2

In our last blog, we explored a scenario where a couple in a relationship lived in suburbia next door to each other. The question arose as to whether or not they were in a de facto relationship. In this week’s blog, you may be surprised to realise that the law may not regard a couple as de facto, even when they have been in a very involved relationship. Our Family Lawyers Brisbane explain in this week’s blog.

The Law on De Facto Relationships

As far as the law is concerned, parties are in a de facto relationship if they are not legally married to each other or related by family and having regard to all of the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

The key to the definition of what comprises a de facto relationship has been said to be the manifestation of “coupledom” involving the merger of two lives.   There must be activities of running a household. Domesticity may be signified by home conditions and arrangements. For example, it may be indicated by parties coming and going whether living in suburbia or the CBD as if entitled to use and share a home’s facilities.

However, the fact that parties living in the same residence whether in suburbia or the CBD for only a small part of each week or maintain separate residences do not mean that they cannot at the same time be “living together as a couple on a genuine domestic basis”. The important thing is the nature of the union rather than the amount of joint time spent. It is the merger of two lives into life as a couple that is important for a finding that a de facto relationship existed.

Unless the court makes such a finding, it will not have jurisdiction to determine an application for property orders made by one of the parties (where they are not married).

Whether or not a de facto relationship existed is determined on the balance of probabilities. It is for the applicant to make out the case. It is for Bob then, to show that there had been a de facto relationship if, following the breakdown of their relationship, he wishes to establish that he has the right to bring a claim against Kate seeking orders for the division of property. It is not necessary that Kate negate his assertions.

In a relatively recent case before the Federal Circuit Court of Australia involving parties whose relationship had been similar in nature to that of Bob and Kate, the Court found that the parties before the Court had not been in a de facto relationship.

There is a list of considerations set out in the Family Law Act 1975 that may denote the existence of a de facto relationship but the list is not exhaustive and is only to be used as a guide. See our blog here for more information.

In that recent case, the Court made certain findings including that:

Duration of the relationship

Whilst the parties had been involved with one another for over 6 years which the Court acknowledged was a significant period of time, the extent of the intimacy between them had waxed and waned.  Mr. X was a determined person whom the Court found had a propensity to self-deception and was pushing for more in the relationship whilst Ms. Y was an unassertive person, who found it difficult to convey to Mr. X what were her true feelings but who was passively withdrawing from the relationship.

The Court found that the mere fact of the length of the relationship did not make it more likely that the parties were in a de facto relationship.

Nature and extent of common residence

The parties had always kept distinct residences in suburbia. Mr. X kept his clothes at his property and used that property as his address of bills and credit card statements; he told his mortgagee it was his address.  There was no evidence provided to corroborate the contention of Mr. X that he could not sleep at his property and that he therefore must have lived at Ms. Y’s property.

Sexual relations

The exclusive nature of their sexual relationship which continued through their 6 years of involvement with each other was a significant consideration.

Degree of financial dependence or independence, and any arrangements for financial support between the parties

Mr. X had not discharged the evidentiary onus upon him to establish that Ms. Y was financially dependent upon him to any significant degree.  On the contrary, it appeared that Ms. Y was able to support herself without the assistance of Mr. X. Apart from the moneys loaned to Mr. X by Ms. Y, the parties did not significantly intermingle their financial affairs together but led quite distinct financial lives.

Ownership, use and acquisition of their property

There were no indications (or at best few) that the parties had any sense of commonality regards any property, which they individually owned.

Mr. X had not been at all involved in the acquisition of Ms. Y’s home which she maintained at her expense.

Mr. X had argued that he had purchased the property in suburbia in his name as part of a joint enterprise with Ms. Y but this argument was not accepted by the Court. The Court found that whilst Ms. Y after the event provided the cash deposit to secure the purchase of the property by Mr. X, she did so as a result of Mr. X imploring her to do so and that she later protected her monies by obtaining a mortgage over the property. The Court considered it implausible (as Mr. X argued) that he did not understand that he was executing a mortgage but entirely probable that Mr. X later bullied and threatened Ms. Y to release the mortgage over his property.

The Court regarded as significant that when the common fence that divided their properties in suburbia was at one point removed, Mr. X did not then gain unlimited access to Ms. Y’s property. He was never given a key to her property and the Court accepted Ms. Y’s evidence that Mr. X had always had to knock on the door to gain entry. Neither was there any evidence that the parties had joined their gardens or yards for any common purpose.

The later reinstatement of the fence, after a particular incident which Ms. Y alleged involved Mr. X trying to assault her and her children, clearly showed that Ms. Y wished that Mr. X no longer be involved in her life.

Brisbane Family Lawyers

Brisbane Family Lawyers

Degree of mutual commitment to a shared life

The parties held different aspirations and views about their relationship and how it should develop. Whilst Mr. X wished to marry Ms. Y, Ms. Y did not wish to do so, having real reservations about Mr. Y’s personality.  There was no mutual commitment to a shared life.

Mr. X would bully and intimidate Ms. Y when he wished to do so. There was a real power imbalance between them and as a result, their relationship was always unsettled, lacking in mutual commitment.

The Court found that the issue of rape, if it occurred, did not negate the possibility that the parties could be in a de facto relationship, noting that it is generally recognised that family violence is endemic in Australian society The only relevance of the alleged rape was that it may have explained why Ms. Y had reservations about committing herself to the relationship with Mr. X.

What’s Next?

Contact LGM’s Brisbane Family Lawyers for advice regarding your relationship. No two cases are alike. Our Brisbane Family Lawyers are ready to help you in your de facto family law matter.