Nearly seven years, two homes, and no de facto relationship

A man and a woman, both previously married and with children, began a romantic relationship in early 2013. It lasted, on and off, until December 2019. They never lived in the same home. She was in the stronger financial position: she owned her home, an apartment and a farm. He was a tradesman with a mortgaged home.

Over the years she lent him money for the legal fees of his earlier Family Court case with his former wife and for living costs, and she kept careful records of each loan. She also paid for holidays. He did work on her properties, sometimes for pay and sometimes to reduce his debt. After they split she demanded about $179,000 back and sued him in another court. He then asked the Family Court of Western Australia for a property settlement, saying they had been de facto partners from 2013 to 2019.

Under the Family Court Act 1997 (WA), the court can divide property only between de facto partners: two people who live together in a marriage-like relationship. Justice Tyson weighed the signs listed in s 13A of the Interpretation Act 1984 (WA). Some pointed his way. They had a sexual relationship, appeared as a couple at times, and each helped care for the other's children.

Most pointed the other way. They never shared a home, kept their finances separate, owned nothing jointly and separated three or four times a year. They made no plans to combine their families. And in that earlier case, with legal advice, he had sworn that they were not in a de facto relationship. He told the child support agency the same thing, and those statements had worked in his favour.

The judge found the relationship was that of a boyfriend and girlfriend, not a marriage-like one. The application was dismissed for want of jurisdiction, so the court never reached the question of dividing property. The dispute about the loans was left to the other court.