Does Casual Sex make a de facto relationship?

Just over 10% of Australians live in de facto relationships.  Under the Family Law Act parties in a de facto relationship have the right to ask for a property settlement if they separate from their partner as long as the court is satisfied that there is a de facto relationship.

Under the Family Law Act a de facto relationship is more than just a romantic relationship, the parties must live together on a genuine domestic basis.  The law, and the courts recognise that all relationships are different and as a result a court will look at many factors in order to determine if a de facto relationship exists, when it starts and when it ends.  For example a court will look at such factors as whether the parties live together, is there s sexual relationship, have they mixed their finances, whether they have been known in the community as a couple.  Each case will depend on its particular circumstances.  

In the matter of Newland & Rankin a court was asked to decide when a de facto relationship began and how long that relationship was in order to determine an appropriate property settlement between the parties.  In that case Mr Newland and Ms Rankin commenced a sexual relationship in 2003, moved in together in 2008 and then separated in 2010.  Mr Newland’s position was that there was a de facto relationship from 2003 onwards.  Ms Rankin disagreed, saying that the relationship only became a de facto relationship in 2008, lasting for only two years.

In the period from 2003 to 2008 Mr Newland and Ms Rankin lived together on two occasions for a period of over 7 months. It was agreed that between 2003 and 2008 the parties did visit each other and have sexual relations and that they were good friends.   It was agreed by both parties also that in this period Mr Newland was dating other women.  When Ms Rankin became pregnant to Mr Newland in 2007 he was not ready to commit to a more serious relationship and made arrangements to live on his own and then with another woman.  In 2008 Mr Rankin became ill and required hospitalization.  The parties then began living together in an exclusive relationship which Mr Newland said he was committed to.

The judge found that there was little evidence that there was a de facto relationship prior to 2008, despite the parties seeing each other regularly, living together for periods of time and conducting an intimate relationship. In the judge’s view this did not amount to a de facto relationship for the purposes of the Family Law Act.  Up to 2008 there was no mutual commitment to a shared life, no shared finances, and no property acquired by the couple jointly.  There was a lack of mutual commitment as demonstrated by Mr Newland rejecting Ms Rankin when she became pregnant with his child in 2007.The judge decided that the de facto relationship was only two years in length from 2008 to 2010 when the parties separated.

The judge’s decision had a significant impact on the potential property settlement between the parties.  The judge decided that because the de facto relationship was only 2 years in length, there should not be an adjustment of the parties’ property interests.  They were to each keep what they already had.  The relationship was too short, in the judge’s view,  for Mr Newland to have made any significant contributions to the property pool.

The takeaway from this case is that many factors are considered in deciding whether there is a de facto relationship.  Having an intimate relationship with someone, even over a period of many years, is not sufficient on its own to establish that there is a de facto relationship and an entitlement to a property settlement.

Should you be in the situation where you are unsure whether you are in a de facto relationship and whether you are entitled to a property settlement, please contact ReesLaw to discuss your circumstances.  Our experienced family lawyers will be able to provide you with advice and guidance to suit your circumstances.