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“You’ve got me for life”

August 1, 2017

 

A man has claimed he was in a de facto relationship with another man for 13 years and as such, is entitled to a property settlement under the Family Law Act 1975 (the Act).  

 

Despite exchanging over 100 text messages a day, describing each other as “hubby”, “my better half” and “partner”, naming each other as the beneficiaries of their Will, attending family functions together and traveling overseas together, the other man denies the existence of a relationship. He asserts that the parties were merely "friends".

 

The question of whether the parties were in a de facto relationship was the sole issue for determination before Justice Benjamin of the Family Court of Australia in the matter of Martens & Bocca [2016] FamCA 1044.

 

The Family Court of Australia has both the power and obligation to determine jurisdiction in terms of whether there is a relationship within the meaning of the Act.

 

Section 4AA of the Act sets out the meaning of a de facto relationship stating that a person is deemed to be in a de facto relationship with another person if:

  • a) The persons are not  legally married to each other; and

  • b) The persons are not related by family; and

  • c) Having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic relationship.

 

The Act sets out numerous criteria that should be considered when determining whether two people have a relationship as a couple. Those circumstances include, amongst other things, 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 and the degree of mutual commitment to a shared life.

 

Once there is found to be a de facto relationship, the Court may make an Order or a declaration in relation to a de facto relationship if the period or total periods of the relationship is at least 2 years, there is a child of the relationship, the relationship was registered, or significant contributions have been made by the party applying and a failure to make a declaration would result in serious injustice.

 

During the 4 day hearing in Martens & Bocca, the Court heard that the parties “each maintained separate homes throughout the relationship” but discussed purchasing a property together. Their financial interaction was described as “relatively limited” however in the thousands of text messages put before the Court, the parties declared their love for each other including saying “I love you” and “you’ve got me for life”. They discussed retirement, employment, superannuation, buying property and their respective families.

 

Notwithstanding the oral evidence from Mr Martens being described by Justice Benjamin as a "barrister’s nightmare", His Honour found that, “the nature of the relationship between the parties was significant, intimate and continued over many years”.

 

He stated that “it was clear that the parties had been in a deep and at times loving committed relationship” and that he was “satisfied that these parties were living together on a genuine domestic basis…and as a consequence, there was a de facto relationship within the meaning of the Act.”

 

They may no longer have each other for life but they will have each other for some time longer whilst the Court determines an appropriate settlement. Some may say that will feel like a lifetime. 

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