There are various factors that the Court considers when deciding if parties were in a “de facto” relationship. One of those factors is whether there are any children of the relationship or if the parties support and care for children.

This factor, however, does not always mean that there is in fact a de facto relationship. 

The Court recently shed some light on this issue in the case of Swinbank & Stein [2022] FedCFamC1F 682:

  • The parties were in a relationship for five years and had two children together (aged 6 and 7 at the trial).
  • The applicant husband was a fly-in-fly-out worker. 
  • The applicant alleged that the parties were in a de facto relationship as they shared a common residence, engaged in sexual relations and had two children together.
  • The respondent wife asserted that the parties had a “casual sexual relationship”, they did not live together in the same residence and the respondent visited her two to three times per year. 
  • The husband asserted that he financially supported the wife.
  • The parties did not own any property or assets together. 
  • The court found that there was no de facto relationship. 
  • It was noted that while the husband shared a residence with the wife from time to time when it suited him, it was not his residence. Consideration was had to the records produced by the Department of Transport, the Australian Taxation Office and the husband’s employer which showed that he did not share a permanent residence with the wife. The husband’s financial contributions were considered to be child support obligations. 
  • It was noted:
    • They may have been in a relationship, but the relationship did not involve the parties living together on a genuine domestic basis. Whilst they may have been a couple in the sense that they enjoyed a physically intimate relationship and were the parents of two children, I am not satisfied that their relationship with each other was such that it could be said that they were living together on a genuine domestic basis. That should not be read as the Court requiring them to demonstrate that they lived in the same household – that is clearly not the law. But the characteristics of the relationship that I have identified above lead me to conclude that they were not living together on a genuine domestic basis.”

Seek Legal Advice

Every matter is different and the outcome will depend on the facts of the case. It is important to seek legal advice from a family law specialist so that you can make informed decisions regarding your financial separation. Contact us for a consultation here at GLG Legal Springfield on: (07) 3288 3511. Our experts are here to guide you through this time.