De factos not the same as married people according to the Court

by Peter Magee on July 14, 2014

Peter Magee

In an article published in “The Australian” on 23 April 2014, Nicola Berkovic reports that “De facto couples – even those who have a child and live together – have a significant social, financial and emotional difference to married couples.”

In the article called “De facto couples have difference to married counterparts, judge says” Berkovic reports that in one case the Court found that although a couple lived together for 13 years, had a child and bought a home they were not in a de facto relationship and had sex “out of need” not love.

In the case before the Court the woman, Ms Benedict told the court the couple shared a bed and were in a marriage like relationship, albeit she, claimed Centrelink benefits and filed her tax return as a single parent.

However, her alleged partner, “Mr Peake” put forward a different view saying they lived together with their child for convenience, in different rooms.

The Court viewed it as relevant that Mr Peake was “attending to his washing at laundromats or at other premises, making his own meals (or more often than not taking meals outside of the home or buying takeaway) and by and large living and maintaining his own life and lifestyle.”

The Judge went on to say: “Indeed, a de facto relationship may be described as ‘marriage like’ but it is not a marriage and has significant differences socially, financially and emotionally.”

Whilst the wording of the Family Law Act is identical in terms of what the Court is to consider when making decisions about dividing de facto partners and married people’s property after separation, the sentiments of the Court as above, suggest that some Judges do still regard de facto relationships as distinct from and different form marriages.

The Judge also accepted Mr Peake’s evidence their sexual relationship was “brief, sporadic and far from reflective of mutual commitment” and went on to say:“In all probability for these parties and especially Mr Peake, engaging in sex with each other has met a need and has not imported or implied anything else be it emotion or commitment,” he said.

Due to work the pair had different waking hours and also were largely financially independent. However the pair had also been involved in business together and took overseas holidays with their daughter.

This case goes to show that it can be very difficult to know whether or not a couple would be found to be in a de facto relationship or not. Arguably the fact that the couple were living separate lives and ordering food separately and so forth would be similar to many married couples.

Whether or not you agree with the decision, what this case may suggest is that whilst married couples may live separate lives, the bar may be higher for de facto couples to truly show that they are in a genuine domestic relationship.

If you do have any questions about marriage or de facto relationships, including if it is likely to be found that you are in one or not, please do not hesitate to contact us at Armstrong Legal on (02) 9261 4555 to book an initial obligation free appointment.

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