Love 'em, keep 'em, leave 'em: (non) application of de facto relationship laws to clandestine intimate relationships

In Jonah v White the Full Court of the Family Court confirmed a trial judge's finding that a woman who had been in an exclusive (on her part) relationship with a man for 17 years, on whom she was financially dependent, was not in a de facto relationship. She was therefore not able to proceed with any application for property settlement or maintenance under the de facto relationship provisions of the Family Law Act 1975 (Cth) ('the FLA'). We make no comment on the strengths or weaknesses of Jonah's financial claim, because our focus is upon 'the denial of her opportunity to proceed on that substantive matter.

In this article we analyse the main findings of the Full Court in applying the definition of 'de facto' in the FLA. We note particularly the Court's acknowledgement that parties do not need to be living together to be in a de facto relationship and that parties may be in a de facto relationship notwithstanding that one is also in a legally recognised relationship with someone else. The Court, in confirming that Jonah and White were not in a de facto relationship, appears to have placed emphasis on the lack of 'public' aspects of the relationship, despite the fact that the very nature of the relationship, being an extra-marital affair, warranted a degree of secrecy. We argue that this finding may have potentially serious legal or economic consequences for the more vulnerable member of a couple who, for whatever reason, keep their relationship secret from others. Secrecy may come at the price of relationship recognition.