Picture this:

Monica and Chandler meet at a golf club and soon become friends. The friendship quickly materializes into a romantic relationship. They go on holidays together and socialize as a couple. Eventually, Chandler moves into Monica’s house. Chandler is so infatuated with Monica that he sells his house, and applies $100,000 (the entire proceeds of sale) to her mortgage. Monica accepts. Sadly, the relationship doesn’t work out and 6 months later, Chandler moves out and sues Monica in the Family Court of Australia seeking orders for Monica to pay him back his $100,000 on the basis that he and Monica were in a de facto relationship.

Other than the fact that Monica and Chandler’s relationship was very brief, and less than the 2 year period prescribed by the Family Law Act 1975 (“the Act”), what is particularly interesting about this scenario is that Monica and Chandler never had sex. This set of facts was very similar to the facts of the recent case, Spencer & Speight [2014] FamCA (“Spencer & Speight”), which Rudstein Kron Lawyers was involved in. In that case, the Court held that you do not need to have engaged in sexual intercourse (or indeed any kind of sexual activity) to be considered to be in a de facto relationship.

How does the Court determine if there is a de facto relationship?

Section 4AA(1) of the Act provides that a person is in a de facto relationship with another person if, having regard to all the circumstances of the relationship, they have a relationship as a couple living together on a genuine domestic basis.

Those “circumstances” to be considered may include any or all of the following factors:

1. the duration of the relationship;
2. the nature and extent of their common residence;
3. whether a sexual relationship exists;
4. the degree of financial dependence or interdependence, and any arrangements for financial support between them;
5. the ownership, use and acquisition of their property;
6. the degree of mutual commitment to a shared life;
7. whether the relationship is or was registered under law;
8. the care and support of children;
9. the reputation and public aspects of the relationship.

To attract the Court’s jurisdiction, you must also show that either the relationship lasted at least 2 years, or you made substantial contributions during the relationship. In Spencer & Speight the Court held that the Applicant’s contribution to the Respondent’s mortgage was substantial enough.

Spencer & Speight – Facts

The parties had different versions of events as to the duration of their relationship. While the Court accepted that the relationship was brief, and was less than the requisite 2 year period prescribed by the Act, it did not take issue with the duration of the relationship. The Court found it had jurisdiction to make orders in this case because of the Applicant’s “substantial contributions” during the relationship, namely by applying significant funds to reduce the Respondent’s mortgage on her home.

One of the main issues of contention was whether or not the parties had ever had sex. The Respondent argued that no sexual intercourse occurred by reason of a medical problem of the Applicant. However, the controversy was limited to the physical aspect of the relationship, and the Respondent conceded that the relationship was more than platonic. The Respondent gave evidence that the physical relationship was discussed, and that she promised the Applicant that she would be “patient” in terms of the development of a sexual relationship. The issue became whether it is sufficient to show that a relationship is more than platonic to prove a “sexual relationship”.

What is a “sexual relationship”?

The Court chose to make no finding as to whether the parties engaged in sexual intercourse, and was satisfied that the parties engaged in “intimacy”, which was sufficient to find that there was a “sexual relationship”.

The Respondent submitted that to constitute a “sexual relationship” it is necessary for a couple to have engaged in sexual activity. The Court rejected this, finding that while the parties may not have had sex, it was a “sexualized” relationship nonetheless.

In Re A Medical Practitioner [1993] 2 Qd R 154, Dowsett J discussed the meaning of the term “sexual relationship” and “sexual relations” in the context of a medical practitioner and a patient, as follows:

“The expression “sexual relations” is often used as a synonym for sexual intercourse; the expression “a sexual relationship” has a wider meaning descriptive of the totality of the relationship between two persons, which relationship has some sexual aspect. The expression is commonly used to describe all of the incidents of intimacy between a man and a woman which lead up to and follow their consummating that relationship by intercourse. In other words, kissing and fondling, particularly intimate fondling may well be part of a sexual relationship, although such act may not normally be themselves described as “sexual relations” unless they occurred in close proximity to actual intercourse. The expression “sexual relationship” implies a continuing relationship over some period of time and often includes non-sexual incidents such as social outings and the exchange of gifts.”

 The Court agreed with Dowsett J insofar as saying that the term “sexual relationship” has a wider meaning than just sexual intercourse and sexual relations. The Court also held that in the context of relationships, there can be “physical and non-physical interactions that have sexual dimensions and components to them”. The expression “sexual relationship” under section 4AA of the Act encompasses the broad and varied community of couples, including heterosexual and same sex couples.

The Court also stated:

“The nature and extent of intimate relationships between couples can be many and varied and do not need to include physical sexual intercourse to fall within the definition of a sexual relationship. However, it must include conscious degrees of mutuality between the couple. Each case will be determined on its own facts.”

In the circumstances of these parties, irrespective of whether they engaged in sexual intercourse, the Court found that they had an intimate relationship, which could only be described as “sexual”.  They shared the same bed overnight for many months, they discussed and at least sought sexual intercourse, and they displayed physical affection to each other.

Lessons

Spencer & Speight demonstrates that each case is to be determined on its own facts when deciding whether or not a relationship can be categorized as “de facto”. In this case, the Court was satisfied that the parties were more than just flat mates or people living together under the same roof. There was an intention to have sex, and at a minimum, the relationship was more than platonic, with the Respondent giving evidence that the parties had a “close and loving relationship”, despite the Applicant being unable to engage in intercourse.

The case also demonstrates that whether you intend it or not, you could be in a de facto relationship with someone. This may be the case even if you are married to someone else, you don’t live together, and if you have never had sex.

This article provides information that is general in nature and not a substitute for legal advice. Please contact RKL on (03) 9519 9888 if you wish to obtain legal advice tailored to your situation.