Traditionally people have been categorised as 'married' or 'single'.
Then sometime last century along came the 'de facto' concept.
This category is the hardest to define and the law, being
the law, has tried very hard to put a definition on it.
In the family law context this is particularly relevant to
property division following the breakdown of the relationship. The current law
provides for de facto couples to have their financial relationship dealt with
under the Family Law Act - using
considerations very similar to those that apply to married couples.
Deciding if a relationship is a de facto relationship is fairly
easy to do where a couple are cohabitating together in a long-term committed
relationship and they have intermingled their financial lives.
But there is an increasing emergence of a new type of
relationship - those who are 'living apart together'.
Generally speaking 'living apart together' relationships
involve a couple who are in a relationship but maintain separate residences.
This can be due to particular circumstances, such as working interstate of
internationally. But it can also be due to an ongoing commitment to children or
grandchildren from a prior relationship - sometimes where their may be concerns
to protect wealth or assets from this newer relationship.
There can be an assumption by participants that living
together apart will shield wealth or assets held at the beginning of the
relationship from the other partner should the relationship breakdown. However
there is an increasing amount of litigation which may give pause.
Firstly, the Court has, in several matters, stated that the
parties own view of the nature of the relationship is not determinative. For
example, in Sinclair & Whittaker (2013)
the Full Court of the Family Court said "the ultimate decision as to
whether there is a de facto relationship at any given time is a matter for the
court and not a matter for the parties. Although their perception of the nature
of the relationship is a relevant matter it is not determinative."
Secondly, the Court has directly addressed the issue of
'living apart together'.
In Jonah & White
[2011] Judge Murphy said "In my opinion, the key to that definition is
the manifestation of a relationship where the parties have so merged their
lives that they were, for all practical purposes, 'living together' as a couple
on a genuine domestic basis." Justice Murphy went on to say "The
issue, as it seems to me, is the nature of the union rather than how it
manifests itself in quantities of joint time."