De Facto Relationships – The Jurisdictional Fact

On 1 March 2009 couples previously without rights under the Family Law Act were finally afforded rights under the Act in line with those rights afforded to married couples. The de facto couple is defined in S4AA of the Act. Unlike a marriage however, which is established by the production of a Marriage Certificate, it is not always so easy to determine whether in fact people are or were in a de facto relationship. The important issue of the definition is that the people in the relationship “have a relationship as a couple living together on a genuine domestic basis”. Until that de facto relationship is established the Court does not have jurisdiction. 

S4AA(2) sets out a list of circumstances a Court may consider in order to determine whether or not a “de facto relationship”, within the meaning of the section, is established. There are nine circumstances set out for consideration however not all those circumstances need to be established in order to satisfy the definition. No one circumstance is necessarily to be established in order for the Court to make a finding that the relationship was a de facto relationship. That means for example, that parties do not have to share a common residence necessarily to be in a de facto relationship. 

Whether or not a de facto relationship exists will be determined in each case on the facts of that particular case. De facto relationships come in all shapes and sizes, some couples live together, some don’t, some share their finances, others don’t. On a case by case basis the evidence before the Court will be determinative of whether the parties were living their lives on a genuine domestic basis. The onus of establishing that a de facto relationship existed is on the party asserting there was such a relationship. 

As the Court has no jurisdiction until the de facto relationship is established interlocutory remedies are not available as of right. Until a declaration is made that the parties were in a de facto relationship the Court simply has no jurisdiction. Murphy J in Jonah and White [2011] FamCA 221 clearly stated “until a finding as to jurisdiction is made there is a limit on the Orders a Court can make”.  

Norton and Locke [2013] FamCAFC 202 was an Appeal from a decision of Judge Scarlett. Ms Locke had successfully sought interim Orders restraining Mr Norton by injunction from interfering with her use and enjoyment of an apartment in which she lived but that was owned by Mr Norton. She had also been successful in obtaining Orders for Mr Norton to make a full and frank financial disclosure including the filing and serving of a financial statement. 

The Appeal was successful. The Full Court relied on the fact that the power to grant an injunction cold not be relied on until the jurisdictional fact had been established. The existence of a de facto relationship was the “jurisdictional fact”. Similarly Pt 24, being the part of the Federal Circuit Court Rules relating to the provision of financial information, did not apply in circumstances where jurisdiction has not been determined. 

Of note in Norton and Locke is the Full Court’s comment that the court has the power to control its own process and, in certain circumstances, it may order the provision of financial information for the purpose of determining the jurisdictional fact, that is, the existence of a de facto relationship.

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