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SEPTEMBER 2013

Friends with Benefits

A de-facto relationship or not?

In a recent High Court decision, on appeal from the Family Court, there was a careful consideration of what can constitute a de-facto relationship. The case also highlighted the potential costs if the Court does determine that it is a de-facto relationship for the purposes of the Property (Relationships) Act 1976.

In this particular relationship, the subject of the Court proceedings:

  • He considered they were “friends with benefits” referring to their sexual relationship but was adamant that they did not live together as a couple. He said that he was a boarder. He highlighted that they rarely went out together, she was not his partner, he had no emotional or mutual attachment to or with her and he had no intention to commit to her.
  • She considered that they were in a de-facto relationship. He had moved into the home she rented in March 2002. In 2005 they both moved into a house purchased by him. They ceased living together in 2009.

The Court considered the following evidence:

  • Whilst at her rental home he contributed to living expenses paying half the expenses which the Court considered was not payment of board;
  • At the time of his purchase of a house he had approached his bank for financial assistance incorporating her income for the purpose of determining ability to service the loans;
  • In 2007 he had approached his lawyer to draft a contracting out agreement (to contract out of the Property (Relationships) Act provisions for 50/50 division) but the agreement was never signed;
  • He provided financial assistance to her children;
  • Others were of the view that they were a “couple”

On that basis the Court did not accept his contention that they were only “friends with benefits”. The Court considered that the evidence supported there being a de-facto relationship. Accordingly, the home that he purchased and they lived in was the “family home” and subject to equal sharing between them.

The Court further ordered:

  • Him to pay interest to her on her share in the family home calculated from the 17th October 2009 (being the date they separated);
  • Him to pay toward her legal costs a total of $17,424.10 on the basis that his position was untenable, he having “advanced little or no evidence in support of his position” that there was no de facto relationship.

Whether there is a de facto relationship or not is a matter of evidence. However it will be judged on the basis of the party’s behaviours over the period of the “relationship” rather than on the basis of statements made subsequently.

It is so important to assess your situation in advance and take steps to protect yourself and your assets. It is too late to try and do so retrospectively. See us as soon as possible to discuss your situation further.