The changing meaning of “de facto” relationships
The meaning of “de facto relationship” has changed dramatically in Australian law in recent years. The most obvious changes are the raft of legislative reforms including same-sex couples as de facto couples in a wide array of state laws through 1999-2004. Additionally, an examination of recent case law reveals notable changes to the definition of “de facto relationship” through judicial interpretation, with a distinct trend towards a broader, more flexible interpretation of the de facto category, a less formalistic approach to the indicia of cohabitation, and a lesser focus on the traditional hallmarks that are thought to be “marriage-like” (such as public reputation, mingled finances and putative monogamy). These cases are important signposts as the Family Court will soon be grappling with questions around de facto relationships, including how to determine the existence and duration of a relationship.
There have been significant changes to the meaning of “de facto relationship” in recent years, most obviously through a raft of legislative changes including same-sex couples as de facto couples in property division regimes (and a wide array of other state laws) through the 1999-2004 period. In addition, an examination of recent case law reveals that there have been notable changes to the definition of “de facto relationship” through judicial interpretation. Recent cases demonstrate a distinct trend towards a broader, more flexible interpretation of the de facto category, a less formalistic approach to the indicia of cohabitation, and a lesser focus on the traditional hallmarks that are thought to be “marriage-like” (such as public reputation, mingled finances and putative monogamy).1
At first glance these trends may appear to be of little interest to the family lawyer; after all, the heterosexual de facto component of the state jurisdictions is soon to be transferred to the Family Court, once the referral of powers process is complete,2 and the Federal Government enacts legislation to exercise the referred jurisdiction. So why pay any attention to the soon to be (largely, but not entirely)3 extinct de facto jurisdiction? The answer is that family law will now be grappling in a major way with questions around the eligibility of relationships under the Family Law Act 1975 (Cth), including how to determine the existence and duration of a relationship. While there are a number of family law cases concerning separation under one roof that have had to deal with the question of when a couple has separated through a close examination of the facts,4 such factual inquiry is not required to ascertain when a marriage began, and would not have to be undertaken if the couple separated temporarily. In contrast, the existence and duration of a de facto relationship, by virtue of its lack of formalisation, is entirely factual. In a remarkable number of de facto property cases, parties dispute either the existence or, more commonly, the duration of the relationship. Thus the Family Court may gain much assistance from the developing jurisprudence of state and territory courts regarding what constitutes a de facto relationship and how to determine when it began and ended.5
Legislative definitions – “de facto” then and now
New South Wales was the first jurisdiction to enact legislation allowing for adjustment of the property interests of unmarried heterosexual couples in 1984. Prior to 1999, s 3 of the De Facto Relationships Act 1984 (NSW) defined de facto spouse as:
in relation to a man, a woman who is living or has lived with a man as his wife on a bona fide domestic basis although not married to him; and
in relation to a woman, a man who is living or has lived with the woman as her husband on a bona fide domestic basis although not married to her.
In subsequent years, Victoria, South Australia, the Northern Territory and Tasmania enacted property division regimes for heterosexual couples, using similar definitions to that above.6 Only the Australian Capital Territory, in 1994, began with an open-ended category for its property regime that clearly did not require either cohabitation or a sexual relationship.7
When New South Wales amended its laws in 1999 to include same-sex couples in property division and a wide range of other areas, it inserted a completely new definition of de facto relationship, as between two adult persons:
who live together as a couple, and
who are not married to one another or related by family.8
In 1999 Queensland introduced a property division regime including both same-sex and opposite-sex couples using the following definition of a de facto couple:
Meaning of “de facto spouse”
260. (1) A “de facto spouse” is either 1 of 2 persons, whether of the same or the opposite sex, who are living or have lived together as a couple.
(2) For subsection (1) –
2 persons are a couple if they live together on a genuine domestic basis in a relationship based on intimacy, trust and personal commitment to each other; and
2 persons are not a couple only because they are cotenants.
These latter elements, while adding a descriptive touch to what a “genuine” relationship is, were criticised by one commentator as adding potential uncertainty such that an otherwise eligible de facto couple could be excluded if, for example, the trust between them had broken down due to infidelity.9 It is interesting to note that this original definition was replaced when broad-ranging reforms recognising same-sex couples were introduced in 2001. Instead, the 2001 reforms adopted a new generic definition of de facto relationship across most Queensland law through an amendment to the Acts Interpretation Act.10 This definition of de facto partner as “either 1 of 2 persons who are living together as a couple on a genuine domestic basis but who are not married to each other or related by family” is very similar to the 1999 New South Wales definition and includes the same list of factors to determine the existence of a relationship.
Amendments to existing property division regimes to include same-sex couples were passed in Victoria in 2001, Western Australia in 2002, and Tasmania and the Northern Territory in 2003 (a Bill to do so in South Australia has been pending since 2004, but has been stalled in the upper house).11 Western Australia and the Northern Territory simply included same-sex couples within earlier definitions, defining a de facto relationship as “a relationship (other than a legal marriage) between 2 persons who live together in a marriage-like relationship”.12
Both jurisdictions introduced an additional subsection providing that it is not relevant whether the parties are the same or different sex.13 Although dropping “spouse” in favour of “partner”, Western Australia and the Northern Territory were in the minority in continuing to use traditional definitions of de facto relationship that referenced marriage and assumed a mirror image of it in all but the formalities.
Reforms elsewhere commonly introduced a new definition of de facto relationship and in some cases also created new terminology (such as “domestic” relationship in the Australian Capital Territory and Victoria, and “significant” relationship in Tasmania).14 The general move away from the terminology of “marriage-like” was reinforced by the fact that in many Acts the use of “spouse” in association with “de facto” was dropped and replaced with “partner”. So, for example, the definition of a “domestic partner” in Victoria is now someone to whom the person is not married but with whom the person is living or has lived as a couple on a genuine domestic basis (irrespective of gender).15
This suggests that the various legislatures were at pains to clearly reinstitute a linguistic (if not legal) distinction between married “spouses” and de facto “partners” in state law. Yet, in what appears to be a remarkable volte face within the space of a few years, all of the states’ referral of power legislation in the early 2000s expressly included same-sex couples as de facto couples,16 and defined a de facto relationship as “a marriage-like relationship (other than a legal marriage) between two persons”.17 The states, then, have made it clear in their referral legislation at least, that same-sex de facto couples are regarded as “marriage-like”, even if the Federal Government disagrees.
Where do all these new definitions and new terms leave us? Quite surprisingly, given the degree of apparent variation, there is in fact a considerable degree of uniformity in these laws once the substance of them is examined. This is because in 1999 New South Wales adopted a list of factors, developed in earlier case law,18 to be taken into account when deciding whether a couple is in a de facto/domestic/significant relationship. These factors include:
the duration of the relationship;
the nature and extent of common residence;
whether or not a sexual relationship exists;
the degree of financial dependence or interdependence;
any arrangements for financial support between the parties;
the ownership, use and acquisition of property;
the degree of mutual commitment to a shared life;
the care and support of children;
the performance of household duties; and
the reputation and public aspects of the relationship.19
Section 4(2) of the Property (Relationships) Act provides that all of the circumstances are to be taken into account and no one factor is required to find that a de facto relationship exists. Importantly, these criteria were later adopted in identical or near-identical versions by all other jurisdictions when they introduced same-sex reforms, suggesting that differences in terminology and definition may in fact not be significant (although a marked difference remains in how property is adjusted once a relationship is found, as the Australian Capital Territory, Queensland and South Australia may have reference to future-based factors when making an adjustment, while New South Wales, Victoria and the Northern Territory remain contribution-based).
Although the Commonwealth is proposing to enact legislation completing the referral of powers in March 2006, it is unknown what criteria, if any, will be included to assist the court in determining if (heterosexual) de facto relationships are “marriage-like” or otherwise eligible. A sensible approach would appear to be to use the same checklist of factors now adopted by the states and territories, in order to both harmonise the law on this point (assuring equity of treatment across areas such as inheritance) and to ensure that the court exercising new jurisdiction has the benefit of the accumulated decisions from those of the old.
Judicial decisions – “de facto” then and now
It is worth recalling that when the De Facto Relationships Act was passed in NSW in 1984 (since 1999 renamed the Property (Relationships) Act) it was thought necessary to include a provision to render financial agreements between unmarried partners lawful,20 as there was still a concern that any such agreement could be void as in breach of public policy for promoting sexual immorality.21 Over the past 20 years there has been a dramatic transformation in the way that unmarried relationships, both heterosexual and same-sex, are viewed by the courts. This section examines the shift from treating heterosexual unmarried relationships as always temporary, illicit liaisons where one party ought to be able to retrieve the money they sunk into it (sometimes with interest), towards a view of de facto relationships as joint endeavours in which plans of a joint future have led to contributions to shared resources and the couple’s or family’s joint welfare. There has also been a somewhat more uneven shift away from viewing same-sex couples as more akin to friends or business partners and towards viewing them as couples, with the commitment to a shared life and intermingled finances that this brings.22 These changes are not always readily apparent, and some jurisdictional differences – in particular in the factors that can be taken into account when adjusting interests – must be acknowledged. Nonetheless, an overall trend can be distinguished by examining the following: a decline in the use of pejorative terminology and express statements that de facto relationships ought not be “equated” or “elevated” to marriage; the abandonment of the “adequate compensation” (or “rent-free living”) approach, and the change in emphasis given to continuous cohabitation as determining the relationship. Each of these areas is discussed below.
Mistresses and the merely unmarried
Over the past 20 years a considerable change has taken place in both social and judicial attitudes towards relationships outside of marriage. One indication of this is the changing terminology employed in the reported de facto property decisions. For example, a search of reported de facto cases reveals that the term “mistress” was commonly used in the 1980s and early 1990s23 although some judges expressly disapproved use of such epithets by the mid-1990s.24 In more recent years such expressions have entirely disappeared from the judicial vocabulary.25 An example of a judicial statement purporting to note the changing times but containing more than a hint of on-going moral disapprobation occurred as recently as 1993:
The law and the attitude of the community to persons living outside wedlock and having children has varied tremendously over the last few hundred years.
Three hundred years ago the law would solve the present situation simply. The community would have shown its disapproval of the conception of children out of wedlock by having the plaintiff stripped to the waist and publicly whipped outside the parish church after morning prayer before being transported to America with her children …Nowadays the plaintiff argues that she is entitled to two million dollars from the defendant and to be supported by him in the lifestyle to which he made her accustomed. That result is produced, she says, because of the operation of the De Facto Relationships Act 1973 [sic].26
Numerous decisions of the New South Wales Supreme Court in the 1980s and 1990s stressed that there remained a “difference” between de facto and married couples,27 or noted that such relationships were not to be “equated”.28 Perhaps the strongest statement to this effect was in a 1986 decision of Young J in New South Wales where His Honour remarked upon the “very real significance of marriage” as follows:
When parties enter into a marriage they do so consciously, knowing that they are entering into a voluntary union of one man and one woman for life and that there are obligations, both moral and legal, with respect to each other and their property. Many people in our society deliberately choose not to enter into that marriage relationship. Some do it because they value marriage so highly they do not wish to, at least initially, take on the full responsibilities of that state. Others deliberately do not do it because they have already had an unfortunate experience with marriage. To construe this Act so that the parties who have deliberately refused to enter into marriage are to be deemed for all purposes as if they had gone through the ceremony of marriage completely defeats those common intentions. All the cases decided to date show that the de facto relationship is not equivalent with marriage.29
In a 1991 article, Chisholm, Jessep and O’Ryan remarked that the various judicial statements distinguishing marriage did not make clear “precisely the way they believe the distinction between marriage and de facto relationships should be reflected in decisions [on property adjustment]”.30 Perhaps illustrating this lack of a clear nexus between status and outcome, a 2002 family provision case granted a gay partner’s claim, including that of a shared residence, in much the same way that a widow or heterosexual partner’s claim would have been determined. Yet the Supreme Court Master concluded the judgment thus:
The relationship was a long one. It was for 31 years. It had its own commitments between the two parties to the relationship, but it must be noted that, in fact, it was only a de facto relationship and in this sense one cannot quite compare it to the situation of a married heterosexual couple who have made the public commitment of marriage.31
Benefits of living rent-free: Contribution and the role of adequate compensation
The concern to differentiate marriage and family law cases led to contention in a line of New South Wales and Victorian cases concerning whether there was any role for so-called “reliance” or “expectation” interests in making an order.32 Ultimately, the competing approaches could best be characterised as the “get-out-what-you put-in cases” (where often the female partner ends up with only around 20-30% of the assets after a long relationship), and the “joint endeavour cases” (where assets are more equally divided, with 40-50% to the female partner).
It is well known that in 1997 a specially constituted five-member New South Wales Court of Appeal in Evans v Marmont (1997) 42 NSWLR 70; 21 Fam LR 76033 held that the then De Facto Relationships Act limited the court to considering only contributions in determining what is just and equitable in an order. It is worth recalling that the majority judgment, in distinguishing the adjustment principles of the Family Law Act, again stated the “not equal to marriage” maxim:
Community attitudes towards de facto relationships have changed significantly in recent decades, and the process of change is still going on. There may be some who think that the policy which was adopted by the New South Wales Parliament in 1984 does not go far enough to make appropriate provision with respect to de facto partners. There may be others who think that it goes too far. The role of the court, however, is to interpret and apply the 1984 legislation. One thing is clear. It was not the intention of the New South Wales Parliament in 1984 to equate de facto relationships with marriage, or to make the same provisions with respect to de facto partners as the Family Law Act, at the time, made with respect to married people.34
After a series of divided decisions, some made by the Family Court exercising state jurisdiction during the period of cross-vesting, the Supreme Court of Victoria eventually accepted the correctness of Evans v Marmont,35 adopting the four-step approach first developed by Powell J in the NSW case of D v McA (1986) 11 Fam LR 214 in 1986. The four steps are:
Identify and value the property.
Determine what contributions have been made by the parties.
Determine whether in the circumstances the contributions have already been adequately compensated.
Determine what order is just and equitable.
Step three is a sharp contrast to the s 75(2) or “future needs” component that would occur in the family law jurisdiction and in the Australian Capital Territory, Queensland and South Australia where there is statutory recognition of such factors.
There are two noteworthy developments since Evans that point to a departure from the view expressed by the majority, and indicate a trend toward treating de facto relationships as indeed comparable to marriage. First, notwithstanding many claims to the contrary, the range of factors taken into account under step four has continued to expand. As Mason P himself noted in dissent in Evans, courts have “let in by the back door the cat they have thrown out the front”36 by taking increasingly broad account of a range of “contextual” factors such as the length of the relationship, the extent to which the finances of the parties have been intermingled, and lost opportunities of the parties under step four.37 Courts have also taken into account a broader range of what constitutes contributions, eg the ability to contribute to tax minimisation38 and also recognition of “negative contributions” under step two.39
Second, step three has been approached very differently in later cases. It appears to have been abandoned altogether by some judges,40 while others continue to refer to it.41 Of those who do still consider it, it appears far less common for judges to view the lower income earning partner or homemaker as “adequately compensated” under step three through the provision of “free rent” or other living expenses than it was in the past.
In 1994 Dorothy Kovacs argued that the “adequate compensation” approach had dominated the New South Wales cases for years.42 Kovacs stated:
It was presumed that a party who had enjoyed the benefits of shelter and support over a relationship had made “contributions which had already been sufficiently recognised and compensated for” within the third stage of D v McA, unless they had made substantial financial contribution.43
Kovacs argues that it was primarily homemaker contributions that were regarded as adequately compensated in this fashion, and notes that in 1986 Young J dismissed homemaker contributions as “jargon” and held that the purpose of the Act was not to “give ... compensation to people for having been in a de facto relationship”.44
While it has been noted by many that later cases were more ready to acknowledge and value homemaker contributions,45 it has been less remarked that the compensation against which such contributions are being judged has also altered. In cases from the 1980s it was common under step three for the court to begin by taking into account the fact that the party seeking an adjustment had lived “rent-free”46 through the relationship, implicitly raising as the relevant comparator a boarder or someone in the private rental market paying for accommodation, rather than a partner jointly contributing to a shared home (albeit, perhaps, one held under sole title). This is clearly no longer the common approach.47 In later cases, “rent-free” accommodation has only been considered a relevant factor once the relationship has ended.48 Moreover, in a recent case from South Australia, H v G (2005) 34 Fam LR 35; DFC 95-325;  SASC 344, even the taking into account of “free” accommodation after the relationship ended was rejected by the Court of Appeal.49 In that case, the female plaintiff and child remained living in the relationship property for four years after separation. When the male partner argued that any adjustment in favour of the female partner should be “off-set” against this benefit, the court responded by finding that the accommodation was not solely for the benefit of the plaintiff, but also for the child and therefore also of benefit to the defendant through providing a familiar and stable environment for his child.50 The importance of the abandonment of the “free-rent” baseline51 for assessing whether there has been adequate compensation should not be underestimated; without it, contribution is much easier to demonstrate.
In both earlier and later versions of de facto property legislation, the various definitions (with the exception of the Australian Capital Territory and Tasmania) require that the parties “live together” or “live with” one another. In the 1986 case of Hibberson v George (1989) 12 Fam LR 725; DFC 95-064, Mahoney JA expressed the test as follows:
There is, of course, more to the relevant relationship than living in the same house. But there is, I think, a significant distinction between the relationship of marriage and the instant relationship. The relationship of marriage, being based in law, continues notwithstanding that all of the things for which it was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of the incidents which the relationship normally involves. The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this. But where one party determines not to “live together” with the other and in that sense keeps apart, the relationship ceases, even though it be merely, as it was suggested in the present case, to enable the one party or the other to decide whether it should continue.52
This appears to set a very strict test for a de facto relationship, requiring continuous cohabitation without a break. The case law since that time demonstrates a far more functional and adaptive notion of de facto relationship, including a more flexible approach to what constitutes living together. These cases arise in various contexts, and are discussed below in the areas of trial and temporary separations, involuntary physical separation, and the maintenance of separate residences.
Trial or temporary separation
In the course of any long relationship it is possible that partners may cease cohabiting for various reasons, such as to consider whether the relationship should continue during a rough patch, to try to persuade or pressure the other partner to change, or because another relationship has commenced which does not ultimately last. Sometimes these breaks may be of only a few days or weeks duration, or they may last months or years, and it is arguable that in the context of a 20 or 30-year relationship, a break of one or two years could still in retrospect be called “temporary”.
In Hibberson the court found that a period of three months’ separation at the end of a nine-year relationship, during which the parties were still deciding whether to continue together, acted to terminate the relationship. This was held to be so even without communication of a settled determination to separate permanently. This decision led to a line of reasoning in which courts found that long relationships with brief periods of separation were in law to be treated as two or more short relationships.53 A notable example of the artificiality that this approach generated is the case of Lipman v Lipman (1989) 13 Fam LR 1; DFC 95-068, where the parties entered a relationship in 1973 and ended it in 1986, with a period of five months in 1982 where they separated. Rather than finding a 13-year relationship existed, the court held that there were two relationships, one from 1973 to 1982, and another from 1982 to 1986. The earlier of these periods was disregarded as outside of the scope of the De Facto Relationships Act 1984 (NSW) which commenced in 1985 (although an order in equity was made). An even more extreme example is Gazzard v Winders (1998) 23 Fam LR 716; DFC 95-209, where the parties had a 15-year relationship with a six week separation in the midst of it, and Powell JA determined to view it as two separate relationships, one of four years and another of ten-and-a-half.54 However Beazley JA disapproved this approach, stating:
For myself, I do not know that it accords either with reality or a proper construction of the Act to find that an interruption which, in a long relationship may be no more than a hiccup, would have completely brought the relationship to an end. In any event, I can see no reason why a short interruption of the relationship for 6 weeks in a period of 14 years should prevent the court from taking into account the circumstance that this was a lengthy relationship of that order.55
However, as the matter was not raised on appeal, it was not conclusively determined, and the question of whether a relationship with separations is to be regarded as a single de facto relationship has continued. This has implications for determining relevant contributions, both at the beginning and the end of a relationship.
While the Family Court has routinely taken into account contributions made prior to marriage,56 such contributions have generally been made while the parties were cohabiting prior to marriage. Once the Family Court gains jurisdiction over de facto couples it will be in the position of having to decide whether contributions in de facto relationships made prior to cohabitation can be taken into account. In early cases the New South Wales Supreme Court held that it could not take into account contributions made before the relationship commenced57 and regarded commencement of the relationship as when cohabitation began, even if mingled funds and the commitment to future plans had occurred prior to that date.58 This approach was finally rejected by the New South Wales Court of Appeal in 2001 where contributions made prior to cohabitation were taken into account in making orders.59 In Jones v Grech (2001) DFC 95-234 the parties had been in a relationship over a 32-year period, during several of the early years of which the male partner was also in a formal marriage. Through some of the years he regularly stayed in the female partner’s premises, and through two periods covering several years, the parties lived full-time in a joint residence. While Powell JA in dissent would have taken into account only those contributions made in the final four-year period of cohabitation, and ignored the preceding 28 years of the relationship, the majority judges, Davies and Ipp AJA held that they should consider the context of the relationship over the entire period in making an order to divide the property equally between the parties.
Note that even when pre-cohabitation contributions are taken into account, they have been generally viewed as occurring prior to the commencement of the relationship.60 However it appears that there has been a significant departure from this approach recently. In the 2005 case of Milevsky v Carson (2005) DFC 95-314, the parties had a relationship over a period of 22 years, with a four-year break in the midst of it. In that case the court introduced an “aggregate” approach, treating it as a long relationship comprised of all the years in which the couple were together. Another case of note is the Tasmanian Supreme Court decision in Robinson v Rouse  TASSC 48. In that case a gay male couple had been in a 16-year relationship, but lived apart for the first eight years. The claim was made over two related properties on a farm, both of which were brought into the relationship by the defendant who was given one and inherited the other – but both were maintained and improved through the efforts of the plaintiff, including in years prior to the defendant gaining title. The men lived separately for the first eight years of the relationship, but the court had no difficulty finding that they nonetheless had a joint enterprise throughout, taking as relevant contributions through the whole 16 years.
The focus on continuous cohabitation as an essential element in a de facto relationship in Hibberson led to decisions that questioned the extent to which forced separations of short or long duration acted to terminate a de facto relationship. The high-water mark was the first instance decision in Howland v Ellis,61 where the NSW Supreme Court held that the de facto relationship ceased when the male partner was removed to gaol even though the couple continued to regard themselves as in a committed relationship, with the female partner visiting prison and awaiting her partner’s release for over four years from the time of his incarceration. The Master held that the relationship ceased at the date of imprisonment, clearly equating a de facto relationship with continuous cohabitation and holding that the relationship could not subsist if supervening events caused a physical separation. This approach had not been taken in earlier inheritance cases where ill health led to a partner’s removal from the relationship property,62 and was regarded both by commentators63 and the NSW Court of Appeal as plainly wrong. The Court of Appeal held unanimously that the involuntary nature of the separation meant that it did not end the relationship.64 This latter approach, focusing on the intention of the parties rather than the fact or duration of the physical separation, was extended in a 2005 Queensland case involving the partner leaving the shared residence to care for her parents due to their ill health. In PY v CY (2005) DFC 95-323, the couple had cohabited for nine years, then lived separately for a further three years when the female partner moved away to care for her parents. During those three years, the male partner visited every second week, and towards the end of that time they searched for another joint residence. The trial judge and all three judges of the Queensland Court of Appeal in separate and detailed judgment held that the relationship had continued through that three-year period.
In 1997 the New South Wales Supreme Court concluded in Parks v Thompson (1997) DFC 95-182 that it was not possible to be in a “part-time” de facto relationship, and disregarded a period of between two and four years in which the female plaintiff claimed that although her partner had established another residence he continued to sleep with her at the relationship property two or three nights per week. In a 2001 case Powell JA vigorously disapproved a trial finding that a period of nine years in which one party stayed with the other three or more nights per week could constitute a de facto relationship.65
By contrast, in the 2005 case W v T (2005) DFC 95-317 the Queensland Supreme Court held that a de facto relationship existed over a 20-year period, notwithstanding there was a common residence for only the first four years. After that time, the male partner had a job managing a caravan park and stayed overnight at the park four nights a week, and stayed at the residence of the female partner on the other nights.
Another example of a de facto relationship being found despite the parties maintaining separate residence is the 2004 case Greenwood v Merkel (2004) 31 Fam LR 571; DFC 95-290;  NSWSC 43, where the NSW Supreme Court held that a six-year relationship in which the parties maintained separate residences but spent most nights of the week together at one or the other of them (with the exception of a six-month period in which the female partner stayed in the male partner’s residence) was a de facto relationship. The court held that:
they lived together as husband and wife on a bona fide domestic basis in the way that suited them, and such breaks as there were, were too brief to destroy the continuity of their de facto relationship within the meaning of the statute … Many a normal marriage may suffer the disturbance of similar intermissions.66
The notion of living together in “the way that suited them” adapts the definition of living together to a wide range of circumstances, covering both relatively independent relationships as well as those that are more closely or more obviously interdependent. The question may still be an open one however, and in such cases much will depend upon other factors that demonstrate a shared life, such as shared finances. In a 2004 case, S v B  1 Qd R 537; (2004) 32 Fam LR 429; DFC 95-282;  QCA 449, a couple had a seven-year relationship, the last four years of which were spent in a residence with two-self contained units, separately occupied by the parties, but with a common living area. The parties continued to share meals and a sexual relationship, and the female partner undertook the majority of the household tasks. The Queensland Supreme Court held that the relationship subsisted through the entire seven years. Although this decision was reversed by the Court of Appeal, this was on the basis that the Court of Appeal found on the evidence that the relationship between the parties had broken down in the last year: it upheld the finding that the latter period where the parties occupied separate dwellings could be an eligible de facto relationship.67
Taken together, these cases widen considerably what “living together” means and indicate a far more flexible approach to the assessment of cohabitation, as well as a more functional approach to variety of de facto relationships and the ebbs and flows that may take place within them.
However, the trend towards regarding de facto relationships as more akin to marriage is not entirely linear. Notably the Queensland Court of Appeal decision in S v B held that the onus in de facto cases is the reverse to that in marriage cases concerning whether the relationship is in existence. Dutney J stated:
De facto relationships are by nature fragile. The robust institution of marriage survives until formally dissolved by legal process, even though the parties are no longer a couple and exhibit none of the observable indicia of a domestic arrangement.68
In the separation-under-one-roof case of Re Pavey (1976) 10 ALR 259; 25 FLR 450; 1 Fam LR 11,358;  FLC 90-051 at 75,212 the Family Court held that there is an “inherent unlikelihood that the marriage is broken down” if the parties remain cohabiting, and the onus is on the party arguing for separation to demonstrate a change in the relationship. Citing this case, the Court of Appeal in S v B held:
The reverse applies in the case of a de facto relationship in the sense that the party asserting the continuing relationship must prove the positive aspects of the relationship rather than the party asserting separation being required to prove the negatives.69
I would suggest that such an approach is correct in the sense that, in the absence of formalisation, the party asserting the existence of a relationship must bear the onus of establishing the existence of an eligible relationship. However, it appears to be wrong, in circumstances where a settled and lengthy relationship has been clearly demonstrated, to continue to place the onus on a party to bring evidence of its continued existence to the final day. In the case where a party is denying that an otherwise eligible relationship should not be eligible, or should be regarded as brief or punctuated, the onus should surely be on them to show at least a prima facie case of why this is so.
I also suggest that the Court of Appeal’s emphatic restatement of the approach to separation from Hibberson – that a de facto relationship is terminated by an intention to separate, even if that intention is not mutual, is not final and is not communicated to the other party – cannot be regarded as correct.70 A de facto relationship exists through the mutual understanding of the parties and mutual commitment to a shared life. While such a relationship can of course be terminated by one party’s decision, that decision must be a settled one, and must be communicated to the other to party. The absence of any formal process to bring about a termination surely makes it more, rather than less, important that a decision to separate be conclusive and be communicated.
The expansion of the jurisdiction of the Family Court to cover heterosexual de facto property disputes is an interesting new development, likely to increase the range of factors taken into account in adjusting property and to decrease the costs of separating heterosexual couples who are in dispute about both property and children. The court will be confronted with the issue of how to determine the existence of a de facto relationship across a wide – and apparently ever expanding – range of scenarios. It is suggested here that the Commonwealth would do well to introduce into the legislation an inclusive checklist of factors similar to those currently in use in state and territory law, in order both to contribute to harmonisation of the meaning of de facto relationship in Australian law, and to gain the benefit of the many state court decisions regarding what constitutes a de facto relationship. Not all state court decisions are laudable, but overall the state decisions have evinced a distinct trend towards a more flexible and purposive approach to the wide variety of de facto relationships that exist.
(2006) 1 CFL 1 ©