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Is it a legal de facto relationship?

Property settlement and de facto relationships

One question that arises from time to time in Family Law is whether or not a de facto relationship exists in a legal sense. This can be important when a court is asked to make orders about property.

If a de facto relationship exists then there may be a claim for a property settlement under Part VIIIAB of the Family Law Act 1975. Under section 90SM of the Act a court has the power to make orders altering interests in property after the breakdown of a de facto relationship.

Given the importance of the question it is not surprising that on many occasions the courts have been asked to decide whether there existed a legal de facto relationship. This involves a court considering the circumstances of the case and applying the definition of a de facto relationship which is found in section 4AA of the Act. You can access the full definition by clicking here.

A case example – was there a de facto relationship?

One such case was heard earlier this year. In Crick & Bennett the Federal Circuit Court declared that there was a de facto relationship. This decision opened the door to a property application by Ms Bennett. The other party, Mr Crick, was not happy with that decision and so he appealed to the Full Court of the Family Court to try and overturn the decision.

Ms Bennett and Mr Crick began living together in her property in 2001, had a child together in 2003 and a sexual relationship that lasted for a year or two after the child was born. After that time they lived under the same roof but, according to Mr Crick, were separated and sleeping in separate bedrooms until 2014 when Mr Crick left. He told the court that their de facto relationship had ended a decade earlier. However Ms Bennett said that they had continued to be a couple and that this was how they were perceived by people outside of their relationship. Their evidence was quite limited and contradictory.

Unfortunately for Mr Crick, the Family Court upheld the earlier decision and agreed that there had been a de facto relationship until 2014 which led to Ms Bennett having a claim under the Act. To make matters worse and because he didn’t succeed with any aspect of his appeal, he also was ordered to pay Ms Bennett’s costs of the appeal.

Every case is different – always get your own legal advice

The background in the Crick & Bennett case is a little unusual but it reminds us of the endless variations in domestic relationships. No two sets of circumstances are ever quite the same nor are they sometimes what they appear to be to the outside world. That’s why legal advice specific to your circumstances is so important.

You can read the full appeal decision in Crick & Bennett by clicking here.

And for some more general information about de facto relationships in Family Law go to our web page by clicking here.

 

 

Please note

This article was written by Alex Wynn of Bell Legal Group. It is general in nature, is not intended to be legal advice and should not be relied upon as such.