Court finds “friends with benefits” living arrangement not a de facto relationship

by Peter Magee on March 13, 2015

Peter Magee

Since amendments to the Family Law Act became effective in 2009, the Family Law Courts have had the power to make orders regarding the division of a de facto couple’s property following the breakdown of their relationship. When determining who gets what, the Court considers the same factors that it takes into account when making orders regarding married couples.

But what happens when one party asserts that there is a de facto relationship and this is denied by the other party? Whilst marriage is an objective fact – you have either been married or you haven’t – unfortunately for non-married couples the line in the sand is not always as clear. This means that the Court must first answer the preliminary question of whether there is indeed a de facto relationship and in doing so, determine whether the property of the parties can be divided by the Court.

In the recent Federal Circuit Court of Australia decision of Regan & Walsh, Judge Coker considered this preliminary question in a case involving two men who lived together and maintained a sexual relationship from 2005 until 2013 (albeit with some periods of time apart, including approximately one year at one point). Whilst Mr Regan asserted that their common residence constituted a de facto relationship and that he was therefore entitled to a handsome property settlement, Mr Walsh position was that they simply a shared house and had a sexual relationship.

His Honour accepted Mr Walsh’s evidence that their relationship more closely resembled a “friends with benefits” arrangement, rather than them being a “couple living together on a genuine domestic basis”. In considering the evidence of both parties, Judge Coker found that:

  • The parties lived under the same roof for more than six years and maintained a non-exclusive sexual relationship.
  • Rather than there being arrangements for Mr Walsh to financially support Mr Regan, Mr Regan used Mr Walsh’s strong financial position to his own interests.
  • Mr Walsh purchased real property when they were living together, but did not include Mr Regan in this process, nor did the parties share any bank accounts.
  • There was little evidence to support a conclusion that there was a mutual commitment to a shared life. In addition to the factors set out above, Mr Regan did not travel with Mr Walsh, nor did Mr Walsh include a provision for Mr Regan in his will.
  • There was not an outward perception available to the world at large of a relationship of a genuine domestic nature existing between them.

In these circumstances, Mr Regan’s application was dismissed and it was held that the Court could not make orders altering the parties’ property ownership.

Since the de facto relationship amendments were first introduced, there have been concerns that these provisions would unfairly capture people who did not have any intention of living in a de facto relationship, or did not think they were living in such a relationship. It is my view that decisions such as Regan & Walsh go some way towards alleviating these fears, as well as being an important reminder that the existence of a de facto relationship must be determined on the unique facts of each case.

If you are unsure about whether you are or have been living in a de facto relationship and are entitled to a family law property settlement, we invite you to contact us and speak to one of our family lawyers, who will be happy to provide you with their expert advice.

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