De facto or Mistress - is there any longer any difference?

When the Federal Government amended the Family Law Act in 2009 to extend it to cover de facto as well as married couples, there was widespread media concern that this would mean mistresses would be entitled to claim half of a man’s assets.

Two years later, the Family Court has handed down a decision giving some limited guidance regarding whether a mistress is a de facto for the purpose of the Family Law Act.

That case related to Ms Jonah and Mr White, who were in an intimate relationship from early 1992 until early 2009. During that time Mr White was married and living with his wife and three children.

Ms Jonah and Mr White’s relationship was a secret, and Ms Jonah lived in her own homes in Sydney, Brisbane and a northern New South Wales town. Ms Jonah and Mr White spent two to three days together, every two to three weeks, either at Ms Jonah’s home or Mr White’s farm.

There were some occasions when they spent two or so weeks together, including an overseas trip. Mr White assisted Ms Jonah with $24,000.00 towards the purchase of her Brisbane home and paid her $2,000.00 to $3,000.00 per month so that she would not have to work and was, therefore, free to visit him at his farm when he wished.

The parties otherwise kept their finances separate. They did not have any children together.

Justice Murphy found that Ms Jonah and Mr White’s relationship did not satisfy the Family Law Act definition of a de facto relationship. Ms Jonah was not, therefore, entitled to a property settlement or “spouse” maintenance from Mr White.

In summary, the Family Law Act definition of a de facto relationship is that persons who are not legally married to each other and not related by the family have a relationship as a couple living together on a genuine domestic basis.

To ascertain if the persons have a relationship as a couple the Court may take into account all of the circumstances of their relationship, including things such as :

The length of the relationship;

• The nature and extent of their common residence;
• Whether a sexual relationship exists;
• Their financial arrangements and degree of financial interdependence;
• The ownership or use of property;
• The care and support of children;
• The public reputation of the relationship;
• The parties’ degree of mutual commitment to a shared life.

If a person satisfies that definition of a de facto relationship, he or she is entitled to make a claim for property settlement and/or “spouse” maintenance if there is a child of the relationship, the de facto relationship lasted for at least two years or one person made a substantial contribution to the assets of the other person.

The Act specifically recognises that a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

In Jonah & White, the Court was not satisfied that the circumstances of the relationship met the Act’s definition of a de facto relationship. Even though the parties had a sexual relationship for some seventeen years and spent time “living together” at each other’s homes, the Court did not consider that they were “living together as a couple on a genuine domestic basis”. Justice Murphy did not think that their relationship demonstrated a “coupledom”, or a merger of two lives.

In coming to that conclusion, his Honour was particularly concerned about the clandestine nature of the relationship, that Ms Jonah and Mr White did not spend time socialising as a couple, they had little or no involvement in each other’s lives, they maintained separate households and, apart from the financial support provided by Mr White to Ms Jonah, they did not mingle their finances.

While the Act specifically contemplates that a person could be married and in a de facto relationship (or in two de facto relationships) at the same time, the Judge did not think that that was the case in this instance.

In my view, the decision is probably a correct interpretation of the Family Law Act definition of a de facto relationship. It seems to me that in order to demonstrate that the parties had a relationship as a couple living together on a genuine domestic basis, one must show more than a clandestine affair conducted for two to three nights every two to three weeks.

Of course, the decision in Jonah & White is one decision only of a single Judge of the Family Court, sitting at first instance. It is not necessarily binding on other Family Court Judges and, in an appropriate case, may be overturned or not followed on appeal.

The decision also leaves open the question of – even if Ms Jonah was not in a de facto relationship ­– what are the circumstances that would enable the Court to find that a person was in a de facto relationship and married (or in two de facto relationships) at the same time?

Does the Act contemplate circumstances such as a person maintaining two households and two families in different locations and surreptitiously dividing their time between both?

Or might something less than that satisfy the definition of a de facto relationship? While the decision in Jonah & White has provided some guidance in relation to the definition of a de facto relationship in a “mistress” case, more Court decisions are needed before practitioners will be able to provide a clearer answer to the question of whether a mistress is also a de facto.