The Court determined that the relationship was not a De Facto Relationship.

This question appeared before the Court in the recent case of Jonah & White [2011] FamCA 221 on 4 April 2011.

In the case of Jonah & White [2011] FamCA 221 on 4 April 2011.the affair had been ongoing between a single woman and a married man over a period of 17 years. The woman had commenced working in the business run by the man and they began an intimate relationship. That relationship continued, with some interruptions between 1992 and 2009. During the whole of that time, the man was married, with children. His Wife was, until the end of that period, unaware of the relationship.

During the course of the relationship, the man and woman expressed love and affection for one another, had a sexual relationship and spent various time together including overseas travel.

The man assisted the woman in the purchase of her house by gifting her $24,000.00. The man also maintained the woman by making regular monthly payments to her.

In this case the woman applied to the Family Court of Australia for a Declaration that the relationship was De Facto in nature. The Family Court, when considering whether a relationship is De Facto in nature considers the following:

The meaning of a de facto relationship

A person is in a de facto relationship with another person if:

  • the persons are not legally married to each other; and
  • the persons are not related by family; and
  • having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

The Court will consider all of the circumstances of the particular relationship, but in particular, will consider the following:

  • the duration of the relationship;
  • the nature and extent of their common residence;
  • whether a sexual relationship exists;
  • the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
  • the ownership, use and acquisition of their property;
  • the degree of mutual commitment to a shared life;
  • whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
  • the care and support of children; and
  • the reputation and public aspects of the relationship.

It is important to note that no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.

A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

In the Case of Jonah & White, the Court considered that on the evidence as a whole the parties maintained separate lives, the man living with his Wife and children in their matrimonial home and the woman living by herself in her own residence.

Although the parties came together, on a regular basis, for periods of time during which they enjoyed a loving, sexual relationship, the Court formed the opinion that absent from the relationship was the “merger of two lives into one”, or the “coupledon”. The Court accepted that the long-standing nature of the relationship was a pointer toward the relationship being a de facto relationship, as too did the existence of the sexual nature of the relationship and the financial support provided.

Nevertheless, the Court determined that the relationship was not in this case, not a De Facto Relationship.

Notation:

  • a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and
  • a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.
Was a 17 year affair a De Facto Relationship

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