If a couple in a casual relationship are physically intimate in the absence of the commitments associated with a long-term de facto living arrangement, it may not be legally recognised as a de facto relationship. However, the point at which such an arrangement becomes a de facto relationship, and therefore gives rise to one party having the right to make financial claims against the other party, ought to be considered.

In Australia, the law recognizes de facto relationships, which refer to the relationships between two individuals who are not married or related by blood, but who live or have lived together on a “genuine domestic basis”. In some cases, the Court has classified relationships which do not qualify as de facto relationships as “friends with benefits”.

Determining whether a friends with benefits relationship is in fact a de facto relationship becomes crucial when one party seeks to initiate asset division proceedings. In considering whether a couple is in a de facto relationship, the court may give regard to any of the following (non-exhaustive) factors:

• The length of the relationship;
• The nature and extent of shared living arrangements;
• The degree of financial independence;
• The extent of mutual dedication to a shared life; and
• The reputation and public aspects of their relationship.

In Jones & Michetti [2022] FedCFamC1F 771, the Court considered whether a 16-year open relationship would be considered a de facto relationship. Although there was no dispute as to whether the relationship was romantic and intimate in nature, the Court was unable to establish the existence of a de facto relationship on the following bases:

• The parties maintained separate residences;
• Despite the relationship’s duration, it lacked exclusivity as the applicant was in another de facto relationship;
• There was no shared property; and
• The parties did not publicly present as a couple living together on a genuine domestic basis.

It is also important to note that the presence of children does not automatically establish the existence of a de facto relationship. Notably, in Swinbank & Stein [2022] FedCFamC1F 682 (‘Swinbank’), the Court had to determine whether a 14-year relationship, which resulted in two children, qualified as a de facto relationship under the Family Law Act 1975 (Cth):

In Swinbank, the Mr Swinbank argued that the relationship was de facto, while Ms Stein maintained that their connection was at best a “casual sexual relationship”. The court found in favour of Ms Stein, basing its decision on the following factors (among others):

• The absence of a shared residence;
• No joint ownership of assets between parties;
• The children were not planned;
• Lack of financial interdependence; and
• Insufficient evidence to suggest a commitment to a shared life together.

Ultimately, a determination of whether a physically intimate relationship will qualify as a de facto relationship will turn on each set of unique circumstances. For this reason, it is important to remain aware of the potential legal implications of entering into a friends with benefits arrangement, in order to safeguard potentially conflicting financial interests.

If you are seeking more information as to the legal status of your relationship or if you need assistance with a property settlement in a family law matter, please contact our office on 9670 4122 or reception@nicholeslaw.com.au to arrange an initial consultation.