When Sex Just Isn’t Enough

Sex alone might be enough for some relationships to run on – namely those in the hot-to-trot early phases of love, lust or infatuation.

But in the long run, sex alone isn’t enough to constitute a de facto relationship. In our latest blog, Bayside Family Law Solutions’ Chris Forster delves into one of the saucier aspects of family law: he addresses the serious legal issues surrounding de facto relationships. What is the legal definition of a de facto relationship, and what are the relevant defining criteria? And how – if at all – does the sexual aspect of a relationship score points in court?

When Gough Whitlam brought in the Family Law Act in 1975, generations of family lawyers were suddenly doomed to professional careers far less juicy than those of their predecessors. It was no longer necessary for couples to prove desertion, adultery, habitual drunkenness or some other form of sordid behaviour to get divorced. All that was required of would-be-divorcees was the confirmation they had been separated for at least one year.

For most Australians ending de facto relationships, 2009 was a turning point. Family law courts began having to decide whether disputed relationships which came before them could be classed as de facto, and when de facto status started and terminated. Usually, a de facto relationship must last for at least 2 years for one partner to make a financial claim against the other, so there are often cases involving disputes about when relationships started or finished. This process often involves parties giving evidence about detailed aspects of their personal lives including financial interdependence, their social lives and their sexual relationships. Questions might also be raised about whether Centrelink was informed of any de facto relationship.

All sorts of relationship types can come under the microscope when issues of legitimacy need to be determined. Sugar Daddies, Friends with Benefits – these relationship types have the potential to be considered de facto in a court of law. In such cases, the threat of a financial ‘trip to the cleaners’ often rears its head – and once you throw sex into the mix, you’ve got a recipe for a fierce case on your hands.

A few years ago we saw the ‘Pole Dancer’ case, whereby she and her older, more financially secure male partner signed a prenuptial agreement stipulating that she would receive $3.25million should their relationship breakdown within four years. Despite that agreement – when the relationship did break down within the specified period – the male partner sought to have the prenup set aside, arguing that her supposed ‘love’ for him was untrue. The Court delved into the negotiation of the agreement, deciding that each of the parties had their own reasons for entering into the relationship and the agreement and that the male partner should be held to his bargain.

More recently, the court heard a ‘Friends with Benefits’ case, which has been reported under the pseudonym Newland & Rankin. In that case, one party made a claim to the assets of his ex-partner on the back of what was believed to be a 7-year relationship – long enough to potentially form the basis of a significant claim to her substantial assets.

In the Newland & Rankin case, the court saw straight through this attempt to claim an ex-partner’s assets. The judge found that the couple were ‘friends who enjoyed a casual sexual relationship’ for 5 years – during the first two of which Ms Rankin was living with her former husband and their children. She became pregnant to Mr Newland, but he said he wasn’t ready to commit and that he’d met another woman who had moved into his flat. Ms Rankin terminated the pregnancy.

In his evidence, Mr Newland opined that the relationship with the woman he shacked up with wasn’t serious and that the first relationship with Ms Newland was his “primary relationship”.

In a win for good sense, the judge found that the couple began living in a de facto relationship when Mr Newland moved into Ms Rankin’s home and they “made a commitment to a shared life together”. And – busting a common urban myth that a 2-year de facto relationship means a 50/50 split is inevitable – the judge dismissed his application for a share of her assets. He was left with next to nothing, and she kept assets worth about $2.7 million.

A de facto relationship usually involves a period of cohabitation – so in many cases, a casual fling or sexually-based relationship doesn’t pose a great risk to your estate. It’s when lines begin to blur that you need to be careful. When does staying over occasionally turn into sharing bills, investments and pets? These gradual changes and shared responsibilities all begin to sound more like a de facto relationship. It’s at this point in a relationship that boundaries need to be set if you have assets you wish to protect.

An objective and experienced family law specialist will be able to assess the prospects of your relationship being characterised as de facto – and if so, what actions to take. If your relationship is rocky and you wish to protect your assets (or you are concerned about being left without your fair share), Bayside Family Law Solutions can provide expert advice based upon years of experience and a passion for settling family matters fairly.

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