The Family Law Act applies to de facto relationships as well as to marriages. This means that court orders can be made regarding the division of property, spousal maintenance and other matters that arise following a separation whether the parties were legally married or in a de facto relationship. However, it is not always easy to determine whether a relationship amounts to a de facto relationship.
Section 4AA of the Family Law Act defines a de facto relationship as one where:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family; and
(c) having regard to all the circumstances of the relationship, the parties
have a relationship as a couple living together on a genuine domestic basis.
It further states that in working out whether persons have a relationship as a couple, the court must consider:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
How does the court assess a de facto relationship?
Not all of the circumstances set out in the Family Law Act must exist for the court to find that a de facto relationship occurred. A court determining whether a de facto relationship existed is entitled to have regard to these matters, and attribute any such weight to any matter, as may seem appropriate.
A de facto relationship may exist between same-sex or different-sex partners. Further, a de facto relationship may exist even if one or both of the persons is legally married to someone else or in another de facto relationship.
Na & Tiu
In the 2017 Family Court decision of Na & Tiu, Mr Na sought recognition of his relationship with Ms Tiu as a de facto relationship. If the court declared the relationship to be a de facto one, then the parties would be eligible to seek court orders adjusting property interests between them. Mr Na sought a property adjustment from Ms Tiu. Mr Na says that he and Ms Tiu were in a 7-year de facto relationship. Ms Tiu says that Mr Na was her boyfriend but nothing more.
The parties’ relationship commenced in late 2005 and ended in 2012. Both parties were married at time the relationship started. During the relationship, Mr Na divorced his then wife. Ms Tiu remained married however, her husband lived in China and only visited Australia occasionally.
Neither Ms Tiu’s sexual relationship with her husband nor her sexual relationship with Mr Na was exclusive.
After Mr Na divorced, he purchased a property so that he would be living closer to Ms Tiu. Mr Na purchased the property in his sole name, but Ms Tiu provided him with around $100,000 to assist in the purchase. Ms Tiu referred to the money as a loan whereas Mr Na described the money as Ms Tiu’s contribution towards the acquisition of the property.
In September 2006, Mr Na and Ms Tiu signed a document called a “Marriage Certificate”, which Mr Na made on his computer. Mr Na and Ms Tiu dressed in wedding attire, exchanged rings and had photographs taken. The photographs were displayed in Mr Na’s home.
Mr Na and Ms Tiu enjoyed holidays together, both domestically and overseas. Whilst on holidays in a foreign country, the parties were open about the relationship when socialising. However, the relationship was kept a secret from Ms Tiu’s family and not displayed when visiting China.
In 2011, Mr Na purchased a property “off the plan” from property being developed by Ms Tiu. Mr Na described the purchase as a property which he and Ms Tiu purchased together (although the purchase was in Mr Na’s name only).
The relationship began to break down in 2012. Ms Tiu obtained an AVO against Mr Na and commenced Supreme Court proceedings restricting Mr Na from disclosing the existence and nature of their relationship. Those proceedings were finalised.
The court found that the parties were never in a de facto relationship. While aspects of the evidence tended to support Mr Na’s contention that a de facto relationship existed, other aspects supported Ms Tiu’s claim that no de facto relationship existed.
Ms Tiu did not want her children, husband, or family to know of her relationship with Mr Na. Ms Liu demanded secrecy about the relationship apart from with strangers. Mr Na and Ms Tiu had no mutual friends. Ms Tiu also maintained her relationship with her husband. The mock marriage certificate, rings, and photographs were kept private and not displayed and shared publicly. Mr Na and Ms Tiu did not live together as a couple on a genuine domestic basis. They never shared a home. Mr Na only stayed overnight at Ms Tiu’s residence when her children were not with her.
Although Mr Na said that he devoted himself to the relationship, the court opined that he wanted more from the relationship than Ms Tiu. Mr Na and Ms Tiu’s perspectives of their relationship were vastly different.
The court found that the parties were never in a de facto relationship. This meant that the court’s jurisdiction to make orders adjusting property interests was not invoked. Mr Na’s application was therefore dismissed.
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