Secretive affair of 17 years fails de facto test

Since 2009, de facto relationships have been included and defined in the Family Law Act 1975. Previously, when de facto couples had a legal dispute, it was handled by State law. The 2009 amendments provided for the family courts to have jurisdiction over same sex couples within the definition of ‘de facto’, but until the following case came along, it was unclear whether long standing affairs, where one or both of the parties are married to other people, could also be defined as de facto relationships.

The case of Jonah v White (2012) FamCAFC 200 came before the Full Court of Appeal on the refusal of the trial judge to declare the existence of a de facto relationship between parties who had engaged in a 17-year affair. The essential question was whether their relationship could be defined as a ‘de facto relationship’.

Under the Family Law Act, a de facto relationship is defined as a non-married couple living together on a genuine domestic basis. To determine this, the Court examines:

• the length of the relationship,
• the nature and extent of a common residence, 
• the existence of a sexual relationship, 
• the extent of financial dependence/interdependence between them, 
• the ownership, use and acquisition of their property, 
• the degree of mutual existence to a common life, 
• the care and support of children; and
• the reputation and public aspects of the relationship. 

In the case, the appellant challenged the correctness of the trial judge’s decision that the relationship did not sit within the strict definition of a de facto relationship (Section 4AA of the Family Law Act).

Facts of the case

Evidence presented found that at all times the man remained married and never lived with the woman apart from short stays at the farm owned by the man and infrequent visits at the woman’s home. They also spent time away together on business trips. They maintained separate homes, separate bank accounts and essentially separate lives, other than the time they spent together.  

Streeterlaw’s Family Law Principal Solicitor Simone Green said while the man paid the deposit on the woman’s house and made regular payments to her living expenses, this was not enough to sway the trial judge.

“Despite the fact that the woman could prove financial dependence, it was not enough to get the woman over the line to prove they “lived together on a genuine domestic basis”, which the legislation requires,” she said.

“A critical factor in the trial judge’s ruling of the non-existence of a de facto relationship in this case was the lack of public reputation of the relationship. The affair was a secretive relationship to prevent the man’s wife finding out.”

The woman provided evidence from friends who claimed to have met the man on limited occasions over the years, but they had not socialised together as a couple. 

The Full Court of Appeal upheld the trial judge’s decision and the appeal was dismissed. 

So while the “affair” was held to be a relationship, it fell short of the legislative requirements for a “de facto relationship” and therefore, financial relief could not be addressed through the Family Court. The Court tended to prefer the evidence of the man in that he always viewed the relationship as “an affair”, albeit a long-term one, rather than “living together”.

For further information or advice on any Family Law matter, please contact Streeterlaw on 8197 0105 or by email at advice@streeterlaw.com.au.