The changing meaning of “de facto”
relationships
Jenni Millbank*
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.
INTRODUCTION
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
*
Associate Professor of Law, University of Sydney. Thanks to Tiffany Hambley for her research assistance and Alex Harland for
comments on an earlier draft.
1
These latter factors will not be discussed in detail in this article, but see, eg Devonshire v Hyde [2002] NSWSC 30; Dridi v
Fillmore [2001] NSWSC 319 (open non-monogamy did not prevent finding a de facto relationship).
2
So far, New South Wales, Queensland, Victoria and the Northern Territory have enacted legislation to achieve this:
Commonwealth Powers (De Facto Relationships) Act 2003 (NSW); Commonwealth Powers (De Facto Relationships) Act 2003
(Qld); Commonwealth Powers (De Facto Relationships) Act 2004 (Vic); De Facto Relationships (Northern Territory Request)
Act 20043 (NT). Western Australia has its own Family Court already accessible to both heterosexual and same-sex de facto
couples and so will only refer its powers to divide superannuation assets: Commonwealth Powers (De Facto Relationships) Bill
2003 (WA). South Australia, the Australian Capital Territory and Tasmania have yet to enact referral legislation. All referring
states thus far have made clear that same-sex couples are included in their referral of power, but the Commonwealth has refused
to accept this aspect and made clear that it will only legislate with reference to heterosexual couples.
3
The property disputes of same-sex couples will remain in the state and territory jurisdictions, as will the property disputes of
non-couples which are covered in the Australian Capital Territory, Tasmania and New South Wales.
4
See, eg In Marriage of Falk (1977) 15 ALR 189; 29 FLR 463; 3 Fam LR 11,238; [1977] FLC 90-247; In Marriage of Pavey
(1976) 10 ALR 259; 25 FLR 450; 1 Fam LR 11,358; [1976] FLC 90-051 at 75,212.
5
Moreover, all jurisdictions will continue to grapple with how unmarried relationships qualify as de facto relationships in the
context of death, for example in intestacy law and superannuation death benefit claims. Many superannuation trust deeds set no
time requirement for a de facto relationship, rendering adjudication of short relationships even more complex: see Beeny C and
Willcocks J, “When Does a De Facto Relationship Exist?” (1996) 194 (July) Superfunds pp 48-49.
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Millbank
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:
(a)
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
(b)
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:
(a)
who live together as a couple, and
(b)
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 oppositesex 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) –
(a)
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
(b) 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
See discussion in: Willmott L, Matthews B and Shoebridge G, “De Facto Relationships Property Adjustment Law: A National
Direction” (2003) 17(1) AJFL 37.
7
See Millbank J, “Domestic Rifts: Who is using the Domestic Relationships Act 1994 (ACT)?” (2000) 14(2) AJFL 163.
8
Property (Relationships) Act 1984 (NSW), s 4(1). Queensland and Tasmania have very similar definitions.
9
See Willmott L, “De Facto Property Claim: Eligibility – Queensland Style” (2002) 23 QL 14 at 16.
10
See Acts Interpretation Act 1954 (Qld), s 32DA(1).
11
For an overview of these reforms see: Millbank J, “Recognition of Lesbian and Gay Families in Australian Law – Part One:
Couples” (2006) 34 FL Rev, forthcoming April issue.
12
Interpretation Act 1984 (WA), s 13A(1); see also De Facto Relationships Act 1991 (NT), s 3A(1).
13
Interpretation Act 1984 (WA), s 13A(3); see also De Facto Relationships Act 1991 (NT), s 3A(3).
14
Property (Relationships) Act 1984 (NSW), s 4(1); Interpretation Act 1984 (WA), s 13A(1); Property Law Act 1974 (Qld),
s 260(1); De Facto Relationships Act 1991 (NT), s 3A(1); Property Law Act 1958 (Vic), s 275(1); Domestic Relationships Act
1994 (ACT); Relationships Act 2003 (Tas), s 4(1).
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The changing meaning of “de facto” relationships
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
15
Property Law Act 1958 (Vic), s 275(1).
See eg Commonwealth Powers (De Facto Relationships) Act 2003 (NSW), s 4(1)(b).
17
Commonwealth Powers (De Facto Relationships) Act 2003 (NSW), s 3.
18
The criteria were drawn from D v McA (1986) 11 Fam LR 214 at 227 per Powell J.
19
Property (Relationships) Act 1984 (NSW), s 4(2).
20
Property (Relationships) Act 1984 (NSW), s 45.
21
See discussion of earlier cases on public policy and sexual immorality in Seidler v Schallhofer [1982] 2 NSWLR 80;
(1982) FLC 91-273.
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Millbank
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
22
Compare eg the common law cases of Wilkins v Johnson (NSW SC, McLelland J, 6 February 1987); Harmer v Pearson (1993)
16 Fam LR 596 and Mauger v Pearson [1999] NSWSC 268 where courts did not construe the same-sex couple as involved in a
“joint enterprise” with a common intention to maintain a home together, with the later cases of West v Mead [2003] NSW SC 161
and Penzikis v Brown [2005] NSWSC 215 and with the statute-based case of Robinson v Rouse [2005] TASSC 48.
23
See, eg Parker v Parker (1993) 16 Fam LR 863; DFC 95-139 and Markulin v Drew (1993) DFC 95-140 both per Young J;
Samsely v Barnes (1991) DFC 95-100 per Meagher JA; McKenzie v Falconer-Brown (1990) 3 WAR 438; DFC 95-099 per
Murray J (in the course of distinguishing between a “de facto widow” and a “mistress”).
24
See, eg Forgeard v Shanahan (1994) 35 NSWLR 206 at 208; 18 Fam LR 281 at 282; NSW ConvR 55-723; DFC 95-156 at
77,186; [1995] ANZ ConvR 282 where Kirby P stated that the use of “mistress” and “paramour” by Meagher JA was
inappropriate.
25
The last case to use this term in the CCH DFC reports was Attwells v Campbell (2000) DFC 95-229; [2000] NSWCA 132 per
Meagher JA.
26
Parker v Parker (1993) 16 Fam LR 863 at 869 per Young J; DFC 95-139.
27
Some commentators also take this view, see, eg Parkinson P, “Quantifying the Homemaker Contribution in Family Property
Law” (2003) 31 FL Rev 1. Parkinson argues that there are five bases for property alteration (intention, contribution, reliance,
partnership and need) and contends that all of these are “valid justifications for property division in marriage, but not all of which
necessarily apply to de facto couples” at 8.
28
See discussion in Chisholm R, Jessep O and O’Ryan S, “De Facto Property Decisions in NSW: Emerging Trends and Policies”
(1991) 5 AJFL 241 at 257-260.
29
Wilcock v Sain (1986) DFC 95-040 at 75,449. In 2001 Powell JA reaffirmed that “it is not the policy of the Act to elevate the
status of a ‘de facto partner’ to that of a marriage”, but it is notable, as will be discussed further, that he was in dissent on that
occasion: see Jones v Grech (2001) 27 Fam LR 711; DFC 95-234; [2001] NSWCA 208.
30
Chisholm et al, n 28 at 260.
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The changing meaning of “de facto” relationships
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:
1. Identify and value the property.
2. Determine what contributions have been made by the parties.
3. Determine whether in the circumstances the contributions have already been adequately
compensated.
4. 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
31
Mair v Hastings [2002] NSWSC 522 at [50] per Master Macready.
In Dwyer v Kaljo (1992) 27 NSWLR 728; 15 Fam LR 645, a majority of the Court of Appeal had taken the view that s 20 (and
in particular what is “just and equitable”) authorised the Court to make orders that would remedy any injustice to the applicant,
based on a reliance or expectation interest. This led some to think that a more expansive or future-focused approach to s 20
would be taken. Wallace v Stanford (1995) 37 NSWLR 1; 19 Fam LR 430 rejected this approach.
33
The Court was constituted as a court of five members after the High Court refused special leave to appeal in both Dwyer v
Kaljo (1992) 27 NSWLR 728; 15 Fam LR 645 and Wallace v Stanford (1995) 37 NSWLR 1; 19 Fam LR 430.
34
Evans v Marmont (1997) 42 NSWLR 70 at 78 per Gleeson CJ and McLelland CJ in Eq; 21 Fam LR 760 at 767.
35
See eg Conn v Matusevicus (1991) DFC 95-109; Findlay v Besley (2003) DFC 95-274; Steinbarth v Peters [2005] VSC 87.
36
Evans v Marmont (1997) 42 NSWLR 70 at 88; 21 Fam LR 760 at 776; DFC 95-184 at 77,616.
37
See eg Findlay v Besley (2003) DFC 95-274; V ConvR 54-688; [2003] VSC 247.
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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; [2005] 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.
Living together
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,
38
See eg Bilous v Mudaliar (2005) DFC 95-315; [2005] NSWSC 71.
See eg RFB v UEB (2005) DFC 95-322; [2005] QSC 178.
40
See eg Howlett v Neilson (2005) 33 Fam LR 402; DFC 95-321; [2005] NSWCA 149.
41
See eg Steinbarth v Peters (2005) V ConvR 54-702; DFC 310; [2005] VSC 87.
42
Kovacs D, “A Dozen Ways (and More) to Lose a De Facto Property Case” (1994) Law Inst J 723 at 725.
43
Kovacs, n 42 at 725.
44
Kovacs, n 42 at 725.
45
In cases such as Black v Black (1992) DFC 95-113. See discussion in Kovacs, n 42 and Parkinson n 27.
46
See eg D v McA (1986) 11 Fam LR 214; DFC 95-030; Swan v Mearns (1989) 13 Fam LR 459; DFC 95-076; Medley v
McHenry (1990) DFC 95-085; Scott v Briggs (1991) 14 Fam LR 661; DFC 95-106.
47
See eg Robertson v Austin (2003) DFC 95-267; [2003] VSC 80.
48
See eg Forgeard v Shanahan (1991) 35 NSWLR 206; 18 Fam LR 281; NSW ConvR 55-723; DFC 95-105; [1995] ANZ
ConvR 282.
49
See also Braxton v Braxton [2001] NSWSC 878, where this was regarded as balanced by the post-separation contribution of
the plaintiff in caring for the child in the relationship property.
50
H v G (2005) 34 Fam LR 35; DFC 95-325 at 78,452; [2005] SASC 344.
51
Although litigants still appear to be raising it: see Bilous v Mudaliar (2005) DFC 95-315; [2005] NSWSC 71.
39
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The changing meaning of “de facto” relationships
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 13year 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 tenand-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 commenced 57 and regarded commencement of the relationship as when
52
Hibberson v George (1989) 12 Fam LR 725 at 740; DFC 95-064 at 75,766 per Mahoney JA.
Contrast the approach taken in the Family Court of Western Australia. Section 205Z(2) of the Family Court Act 1997 (WA)
provides that in determining the length of a relationship the court must consider “whether there was any break in the continuity of
the relationship and, if so, the length of the break and the extent of the breakdown in the relationship.” In L and C [2005] FCWA
23, the court considered a de facto relationship that had existed for five years, followed by a one-year separation, then another
year together. Thackray J disapproved the approach in Lipman v Lipman (1989) 13 Fam LR 1; DFC 95-068, holding that the
relationship had not ended, and the relevant period was an aggregate of the two periods of cohabitation. Thackray J stated at [32][33]:
Legal marriages usually “end”, in popular parlance, when a couple separate. But as a matter of law, such marriages “end”
only when a Court dissolves them. Human relationships are very complicated. Many married couples separate, often on
more than one occasion … In such cases it appears at the time that the marriage is over – it has “ended”. However, after
the elapse of time – in some instances a very long time – some married couples get back together. No one suggests they
have had two marriages, unless of course they have been through the formal process of divorce and subsequent remarriage.
These formal, public options are not available to those who live in de facto relationships. Those living in such ex-nuptial
relationships, in my view, should be treated in the same way as their married neighbours – after a separation they simply
resume their former “marital” relationship – they don’t start another one.
54
See also Powell JA in dissent in Jones v Grech (2001) 27 Fam LR 711; DFC 95-234; [2001] NSWCA 208.
55
Gazzard v Winders (1998) 23 Fam LR 716 at 728; DFC 95-209.
56
See Williams and Williams (1985) 61 ALR 215; 10 Fam LR 355; [1985] FLC 91-628.
57
See eg Roy v Sturgeon (1986) DFC 95-031; Lipman v Lipman (1989) 27 Fam LR 711; DFC 95-068; [2001] NSWCA 208, but
contra Foster v Evans (1997) DFC 95-193.
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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 [2005] 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.
Involuntary separation
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.
Separate residences
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
58
The Court of Appeal acknowledged that a contrary view could be taken, but did not determine the question in Del Gallo v
Frederiksen (2001) 27 Fam LR 162; DFC 95-230; [2000] NSWCA 293.
59
See Jones v Grech (2000) 27 Fam LR 711; DFC 95-234; [2001] NSWCA 208 per majority of Davies and Ipp AJA, Powell JA
in dissent.
60
See eg McDonald v Stelzer (2000) 27 Fam LR 304; DFC 95-233; [2000] NSWCA 302.
61
[1999] NSWSC 1142.
62
Jenkin v Ellis (1990) DFC 95-082.
63
See criticism of the case by Anthony Dickey, who argues that the court was wrong to ignore the subjective intentions of the
parties: “De Facto Relationships and Cohabitation” (2000) 74 ALJ 360 at 361.
64
(2001) 28 Fam LR 656.
65
Jones v Grech (2001) 27 Fam LR 711; DFC 95-234 at 77,344; [2001] NSWCA 208.
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The changing meaning of “de facto” relationships
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; [2004] 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 [2005] 1 Qd R 537; (2004) 32 Fam LR 429; DFC 95-282;
[2004] 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; [1976] 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
66
Greenwood v Merkel (2004) 31 Fam LR 571 at 577; DFC 95-290 at 78,073 per Burchett AJ; [2004] NSWSC 43 at [15].
S v B [2005] 1 Qd R 537; (2004) 32 Fam LR 429; DFC 95-300; [2004] QCA 449. Thus the relationship concluded prior to the
commencement of the Act.
68
S v B [2005] 1 Qd R 537; (2004) 32 Fam LR 429; DFC 95-300 at 78,145; [2004] QCA 449.
69
S v B [2005] 1 Qd R 537 at 549; (2004) 32 Fam LR 429 at 439; DFC 95-300 at 78,148 per Dutney J; [2004] QCA 449 at [50].
67
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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.
CONCLUSION
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.
70
Dutney J in S v B [2005] 1 Qd R 537 at 549; (2004) 32 Fam LR 429 at 439; DFC 95-300 at 78,147; [2004] QCA 449 at [48]
went further than Mahoney JA in Hibberson v George (1989) 12 Fam LR 725; DFC 95-064, saying a relationship could cease
“even though one party is still anxious to try to save it”.
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