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Are there really no strings attached?

Feature Articles

Cite as: December 2012 86 (12) LIJ, p.46

Amendments to the Family Law Act incorporating de facto entitlements to property settlement and spousal maintenance may have endangered the casual relationship.

By William Stidston

The term “no strings attached” is not an uncommon or new phrase. This type of casual relationship is prevalent in couples of all ages. Indeed, the frequency of casual relationships appears to have increased in recent years, possibly as career and other demands have increased in individuals’ lives. Moreover, if society is honest, “casual” affairs are not uncommon either.

On 1 March 2009, amendments were purportedly made to the Family Law Act 1975 (Cth) (the Act) enabling parties to apply to the Family Law Courts for alteration of de facto property interests and spousal maintenance, provided they were in a de facto relationship that broke down on or after 1 March 2009.1 Unbeknownst to both parties and courts, these amendments were not proclaimed correctly and orders were made without jurisdiction until early this year.

The proclamation error was cured on 22 March 2012, when the Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012 was passed. This Act validates orders, and effectively judgments, made pursuant to the 2009 amendments.

Despite the recent jurisdictional debacle, in the three years since the 2009 amendments, the Family Law Courts have had to determine the type of relationship which may be defined as de facto. This article examines some of these decisions.

What is a de facto relationship?

Section 4AA(1) of the Act states:

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

(a) the persons are not legally married to each other;

(b) the persons are not related by family (see subsection (6)); and

(c) having regard to all the circumstances of their relationship they have a relationship as a couple living together on a genuine domestic basis”.

To determine if two individuals have a relationship as a couple, courts will have regard to the factors set out in s4AA(2) of the Act, namely:

“(a) the duration of the relationship;

(b) the nature and extent of their common residence;

(c) whether a sexual relationship exists;

(d) the degree of financial dependence and interdependence, and any arrangements for financial support between them;

(e) the ownership, use and acquisition of their property;

(f) the degree of mutual commitment to a shared life;

(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

(h) the care and support of children; and

(i) the reputation and public aspects of the relationship”.

Importantly, s4AA(3) provides 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” and s4AA(4) states that a court 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”.

It should also be noted that s4AA(5) provides:

(a) “a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and

(b) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship”.

The Court’s perspective

Moby & Schulter 2

In that case, the parties sought (inter alia) declarations as to whether a de facto relationship existed and during which period or periods. Ms Moby asserted that a de facto relationship existed from 2002 to approximately 2009. Mr Schulter denied that the relationship was ever de facto. The parties acknowledged that they were in some form of relationship between 2000 and 2009.

Mushin J found that a de facto relationship existed between the parties during the following periods:

1. May 2002 to May 2004;

2. August 2004 to December 2004;

3. January 2005 to mid-June 2005;

4. Late June 2005 to mid-December 2005;

5. Late December 2005 to April 2007;

6. Late June 2007 to mid-February 2008; and

7. Mid-March 2008 to October 2009.

In declaring the periods of the parties’ de facto relationship, Mushin J identified that the parties’ relationship had gone through different phases. His Honour appeared to place weight on the fact that between May 2002 and July 2007 “they lived together on a full-time basis, subject to the separations, each contributing to the other’s life domestically, sexually, financially and socially” (at [176]).

Interestingly, Mushin J found that the parties maintained a de facto relationship, despite a reduction from living together full-time to living together two weeks out of four. His Honour held that the financial support, living arrangements and social perception maintained the relationship as de facto until October 2009. However, His Honour held that “it cannot be said that the parties’ relationship continued as a de facto relationship . . . during the periods of separation. They did not live together, they had no mutual intention as contemplated by the legislation and their sexual relationship ceased” (at [174]).

Mushin J held:

“In my view, if a couple do not live together at any time, they cannot be seen as being in a de facto relationship. However, the concept ‘living together’ does not import any concept of proportion of time. In particular, it does not require that a couple live together on a full time basis. On the basis that one or both members of the couple may also be legally married or in another de facto relationship at the same time as they are in the subject relationship, it must follow that it is feasible that the subject relationship might involve the parties living together for no more than half of the time of that relationship. Further, there is nothing to suggest it must be even as much as half of the time” (at [140]).

Practically, Mushin J’s judgment may have the effect of broadening the definition of a de facto relationship. For example, the definition may encompass relationships which are socially perceived as casual – for example, a couple who spend only a few nights per week at their respective residences.

Jonah & White 3

In that case, Ms Jonah sought (inter alia) a declaration that the parties had been in a de facto relationship from 1992 to 2009. Although Mr White conceded that the parties were in a relationship, he denied that it was de facto between 1993 and 2007. Both parties agreed that they had maintained a relationship for approximately 17 years.

The parties commenced an intimate relationship in 1992. The relationship continued, with interruptions, until early 2009. Mr White was married throughout the relationship and his wife was unaware of the relationship until 2009. During the approximately 17 years of their relationship, the parties spent periodic time together, had a sexual relationship and expressed love and affection.

Murphy J held that the parties had never been in a de facto relationship. His Honour placed weight on (inter alia) the following considerations (at [69]):

1. Each party kept and maintained a household distinct from the other;

2. The relationship between Ms Jonah and Mr White was clandestine and the parties spent their time very much together, as distinct from time spent socialising as a couple;

3. Mr White continued to emphasise the “limits” of the relationship, stating that he would choose his wife and children over Ms Jonah if necessary;

4. The parties maintained no joint bank accounts or investments and acquired or maintained property in their respective names;

5. The parties rarely interacted with each other’s friends;

6. The parties spent very little time with the other’s family.

Although Murphy J declared that the parties had never been in a de facto relationship, His Honour stated:

“counsel for the applicant submitted – in my view correctly – that a relationship which one party regards as ‘an affair’ might in fact be a de facto relationship as defined. So, too, a woman [or man] who might be described as ‘a kept woman’ (an expression accepted by the respondent upon suggestion from counsel for the applicant) might similarly describe one party’s perception of the relationship but, when all factors and the circumstances are considered, the relationship might nevertheless meet the definition of a de facto relationship” (at [61]).


“It seems to me to be clearly established by authority that the fact that, for example, the parties live in the same residence for only a small part of each week does not exclude the possibility that they are ‘living together as a couple on a genuine domestic basis’ or that maintenance of separate residences is necessarily inconsistent with parties having a de facto relationship” (at [65]).

The case seemingly propounds a broadening of the definition of de facto relationships along the lines of Moby. In particular, the case suggests that parties who only spend a small number of nights together per week may be characterised as de facto. Interestingly, it also suggests that courts may be satisfied of the existence of a de facto relationship notwithstanding the parties’ own perceptions of the relationship.

Smyth & Pappas 4

In that case, Ms Smyth applied for (inter alia) a declaration that she and Mr Pappas were in a de facto relationship that concluded after 1 March 2009. The facts are quite complex and highlight the difficulties faced by courts on this topic.

The parties met in the United Kingdom in 1995 and began dating in July 1997. At that time, it was alleged that Ms Smyth was also involved in a relationship with a sportsman. It was accepted that the association with the sportsman concluded in 1998. Ms Smyth also had a child from a previous relationship and the parties established business endeavours together.

The parties commenced cohabitation in the United Kingdom in 1999. In about November 2001, Ms Smyth relocated to Australia. Mr Pappas visited Ms Smyth three times between 2002 and 2003 and the parties established a joint bank account in Australia. When visiting Ms Smyth, Mr Pappas spent time at both Ms Smyth’s home and at hotels.

Although the facts of this case were uncertain, it appeared that Mr Pappas relocated to Australia in 2004 and recommenced living with Ms Smyth. In March 2005, Ms Smyth left Australia and travelled to Hong Kong and the United Kingdom. In early 2006, Ms Smyth travelled to the United States, where she commenced a “friends with benefits” ([at 53]) relationship with another sportsman. Mr Pappas alleged that he was also seeing another woman during this time.

In October 2006, Mr Pappas travelled to the US to meet with Ms Smyth. The parties resumed living together in Australia in October 2006, and the relationship became strained by late October 2007. By “23 November 2007, the parties were not talking to each other” ([at 74]) save for communicating about business commitments.

The parties did not live together during 2008 but, in February 2009, they resumed sending each other emotional emails and spent intimate time together at a hotel. “The relationship was rekindled in July 2009, when they ate together at [Mr Pappas’] house” ([at 85]) and there were various social and other interactions between July 2009 and December 2009.

Cronin J declared that a de facto relationship existed between the parties during the following periods:

1. 1999 to December 2005; and

2. July 2006 to December 2009 (noting that, during the 12 months between December 2007 and December 2008, the de facto relationship was suspended but not ended).

In declaring that the parties were in a de facto relationship, his Honour had regard to the s4AA(2) factors, noting that they were all present at various times ([at 6]), and appeared to place weight on (inter alia) the following considerations:

1. The fact that communication, business activity and financial support continued during periods of physical separation ([at 43]);

2. Mr Pappas’ jealousy regarding Ms Smyth’s alleged promiscuity. Accordingly, it appeared that Mr Pappas was endeavouring to protect the relationship ([at 50]).

3. The fact that the parties’ relationship, particularly in the later years, could not be isolated to purely a business relationship given the personal issues that were intermingled ([at 90]).

Importantly, Cronin J held:

“As to what sort of relationship satisfies the legislative definition, little in the authorities is helpful. In Jonah & White (supra) Murphy J at para 66 described the nature of the union as the merger of two individual lives into life as a couple. It is also conceivable, however, that two people could live very individual lives as a couple preferring not to merge their existences” ([at 7]).

When coupled with the principles of Moby and Jonah, it appears from the judgment in Smyth that:

1. Full-time cohabitation is not necessary for a de facto relationship;

2. A de facto relationship can exist despite the parties’ perceptions of their relationship; and

3. A de facto relationship may exist even if the two people in the relationship maintain very individual lives.

Consequently, there is a danger that relationships which society and individuals perceive to be casual may fall within the definition of de facto.


The type of relationship that satisfies the definition of de facto remains uncertain. As with most legal questions, there is no formula that provides the parties with a clear answer as to whether their relationship is “de facto”. Each case must be determined on its own merits.

What the recent cases demonstrate, however, is that the definition of a de facto relationship under the Act may extend to relationships which society and individuals do not consider to be de facto in the traditional sense. That is not to say that courts will not differentiate between “casual” relationships and de facto relationships. Decisions such as Jonah demonstrate that courts may find that parties have been, for example, merely dating.5

Having regard to the uncertainty demonstrated above, it is important that individuals keep in mind the associated risks if they want to maintain a relationship as casual. There is a risk that what is casual for one party is something more for the other party and/or the courts.

WILLIAM STIDSTON is a solicitor at Westminster Lawyers practising predominantly in family law. He is also a member of the Family Law Section of the Law Council of Australia, a member of the Junior Family Lawyers Working Group, an Associate Member of the American Bar Association and a volunteer solicitor at the Peninsula Community Legal Centre. The numbers in square brackets in the text refer to the paragraph numbers in the judgment.

1. The amending Act was the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2009 (Cth). The amending Act does not apply to Western Australia and only became applicable in South Australia from 1 July 2010.

2. Moby & Schulter [2010] FamCA 748.

3. Jonah & White [2011] FamCA 221.

4. Smyth & Pappas [2011] FamCA 434.

5. See also Ricci & Jones [2010] FMCAfam 1425, which was upheld on appeal (Ricci & Jones [2011] FamCAFC 222); Jensen & Taylor [2011] FMCAfam 1251; Dandridge & Barron [2012] FMCAfam 141; Taisha & Peng and Anor [2012] FamCA 385.


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