Can we be de facto if we don’t live together

How can we be de facto if we each have our own home?

Many articles have been written in the past about the existence of a de facto Relationship and how the existence of such is determined by the court.

In the recent case of Jones and Michetti [2022]FedCFamC1F 771 this question was raised with an interesting set of facts that addressed some different questions that are often put to us by our clients:-

• Can we be “de facto” if we don’t live together, and
• Can we have two “de facto” relationships at the same time.

What was made clear by the decision is that “living together on a genuine domestic basis” which is how one determines whether someone is “de facto” is not a black and white definition but takes into account a myriad of factors which will be different in every case.

The case of Jones and Michetti involved a 16 year relationship between multiple parties.  The Applicant agreed that he was in a de facto relationship with Ms B for almost 20 years and that during this time he also formed a relationship with the Respondent.  The Applicant claimed that his relationship with the Respondent was de facto, which the Respondent denied – seeking a declaration to this effect.

It was agreed that the Applicant and Respondent lived separately save for one or occasionally two nights per week, there was no stated intention that they live together at any point, there was a consistent sexual relationship that was not monogamous, there was no jointly owned or acquired assets, the parties celebrated birthdays and special occasions together and the Respondent included the Applicant in his will.

The Respondent’s position was that the parties were in a causal relationship with no commitment to mutual life other than occasional dates and holidays, which he primarily paid for.

Although he found that the relationship was not “de facto”, Judge McNab did confirm the position of the courts regarding this issue.  This included legislation and case law that determined that there is no requirement that the parties reside in one residence, as parties can have “two homes” and that it is acknowledged that people can be found to be in multiple relationships at the same time, and that sometimes these will both be defined as de facto relationships.

On this occasion the facts lead the Judge to determine that while the couple clearly both cared for each other for a lengthy period of time, the relationship did not develop to the point of the parties living together in a genuine domestic basis having regard to the agreed facts established above.

What we can take away from this case is that the existence of a De facto Relationship as opposed to a casual long-term relationship is not always easily identifiable and if the issue arises legal advice should be obtained from a Specialist Family Lawyer so that the particular facts of your matter can be considered.

If you need advice on these issues or any Family Law related matters, please contact the Macrossan and Amiet Family Law Team.