DE FACTO RELATIONSHIPS

Historically, the law has distinguished between married, unmarried and same-sex couples. This has raised the issue as to what extent the legal discrimination should be removed. DID YOU KNOW People aged between 18 and 24 whose parents separated or divorced during their childhood are more likely to live in a de facto relationship than those whose parents remained married.

What is a de facto relationship? The Family Law Act provides that a de facto relationship can exist: between two unmarried persons of different sexes between two persons of the same sex where one of the parties is legally married to someone else or in another de facto relationship. According to the Australian Bureau of Statistics, over the last ten years there has been an increase in the rates of people aged over 18 years who live in a de facto relationship.

Case: IS THIS A GENUINE DE FACTO RELATIONSHIP? Jonah & White [2011] FamCA 221 In this case, Ms Jonah sought a declaration from the Family Court that a genuine de facto relationship existed between her and Mr White. The couple had maintained a relationship for 17 years during which time White continued to live with his three children and his wife who was unaware of her husband's relationship with Jonah. Jonah and White saw each other for a few days every two to three weeks. They had contact by telephone at least once per day and maintained a sexual relationship during their relationship. For approximately ten years, White paid Jonah $2000 per month which gradually increased to $3000 per month. However, they did not own any property together and maintained separate households. The court found that even though a long-standing relationship did exist and that the parties had a mutual commitment, there was no ‘merger of two lives into one’. Therefore a de facto relationship as defined in the Family Law Act did not exist.

When does a de facto relationship exist? In deciding whether a genuine de facto relationship exists according to the Family Law Act, the court may consider a range of factors including: the duration of the relationship the nature and extent of a common residence if a sexual relationship existed if the relationship was registered ownership, use and acquisition of property financial dependence or interdependence. If the court decides that a genuine de facto relationship does exist, the parties are eligible to bring a claim before the Family Court.

Financial disputes In 2008, the Commonwealth Parliament amended the Family Law Act. The changes enable de facto couples to apply to the Family Court if they cannot agree about financial matters when they separate. The law commenced on 1 March Prior to this date, de facto couples relied on Victorian law and Victorian courts to resolve financial disputes. The changes mean that de facto couples are now treated in much the same way as married couples in relation to family law matters such as children, property division and spousal maintenance. The benefits of the changes include: access to the Family Court and its expertise in resolving relationship disputes alternative dispute resolution methods such as conciliation saving on legal costs as disputes about children and finances can be settled by the same court.

Financial agreements The 2008 amendments to the Family Law Act also cover financial agreements made by de facto couples. The provisions are similar to those for married couples. De facto couples can make a financial agreement prior to, during or after their relationship has broken down. The agreements set out how finances are to be managed in the event that the relationship breaks down. The court may terminate the financial agreement in certain circumstances, for example, where the agreement was obtained by fraud.

Case: HOW SHOULD THEY DIVIDE THEIR PROPERTY? Meaghan aged 41, and Emma aged 39, have lived together in a lesbian relationship for 14 years. Meaghan is the biological mother of Joshua, aged 10, and Emma is the biological mother of Maya, aged 9. The children relate to each other as if they were brother and sister. After Joshua's birth, Meaghan immediately returned to her health professional job and pays the mortgage on the house, which is in her name. Emma is the fulltime carer of both children. Meaghan has now decided to end the relationship and wants Emma out of the house. Emma's lawyer has advised that she has property rights as a de facto. After negotiation, Meaghan agreed to pay Emma $ in an out-of-court settlement.

Deciding who gets what The court can make any property orders it considers appropriate given the circumstances of the case. The court is required to take into consideration a range of factors such as: the financial and non-financial contributions both parties have made to the de facto relationship the contribution to the welfare of the family, including that of homemaker or parent child support that one of the parties is liable to provide. The court may make orders to enforce a valid financial agreement the de facto couple made. Superannuation interests of the parties may be split or the ownership of a house may be altered by the court. One of the parties may ask the other party to pay them maintenance. Reasons for granting an order for maintenance are similar to those for married couples. They include: having the care of a child of the de facto relationship under 18 years of age the party's age physical inability to work.

Case: MAINTENANCE Susan is 64 years old. She suffers from poor health and has not been in paid employment for the past five years. Her ex- partner, Russell, is 65 years of age. Their relationship began in September 1995 when Susan moved into Russell's house. They never married. 305 Their relationship started to break down in April 2009 when Susan learnt that Russell was having an affair with another woman. In May 2009, Susan advised Russell that their relationship was finished. She moved out of their bedroom into the spare bedroom and stopped doing household tasks for him. They continued to live in the same house and Russell continued to pay the bills. Susan made an application under the Family Law Act for maintenance. Her only income is the aged pension. She has $2000 in savings and owns very few personal possessions. Russell owns assets totalling more than $2 million.

Registration of a domestic relationship Marriage is often regarded as a central and fundamental institution in our society. Gay and lesbian groups argue that the definition of marriage in the Marriage Act is discriminatory and denies same-sex couples the right to have their relationship legally recognised. All moves to change the definition of marriage to include same-sex couples have been resisted by various federal governments.

Relationships register By passing the Relationships Act 2008, the Victorian Parliament has, in part, removed some of the legal discrimination against same-sex couples. The Act uses the term ‘domestic relationship’ rather than the term ‘de facto’ used in the Family Law Act. The Relationships Act enables unmarried couples including heterosexual and same-sex couples to register their relationship with the Victorian Registrar of Births, Deaths and Marriages. To be eligible, both of the parties must ordinarily live in Victoria. Neither person can be married or be in another registered relationship. Some advantages of registration include: conclusive proof that a domestic relationship exists receipt of an official certificate avoiding the difficulty of having to prove the existence of a relationship when one of the parties is admitted to hospital in an emergency access to the Family Court to resolve financial disputes if the relationship breaks down.

TEST your understanding 1.) How is a de facto relationship defined by the Family Law Act? 2.) Identify two advantages of enabling de facto couples to have access to the Family Court to resolve financial disputes.