What happens when a party to a relationship, unbeknownst to the party, is having an affair with another person? Is it possible for contemporaneous relationships to exist and what does that mean when one of those relationships breaks down?

De facto relationships

A de facto relationship is where two people over the age of 18, who are not married, are “living together as a couple”. In determining whether a relationship qualifies as a de facto relationship for the purposes of the Property (Relationships) Act the Court will consider a range of factors including:

• The length of the relationship.
• The nature and extent of common residence – the parties living arrangements.
• Whether a sexual relationship existed.
• Any financial dependence or interdependence or financial arrangements between the parties – whether the parties shared financial resources or financially supported each other.
• The ownership, use and acquisition of property – whether the parties jointly owned, acquired and shared property.
• The degree of mutual commitment to a shared life.
• The care and support of children.
• The performance of household duties.
• The reputation and public aspects of the relationship – how other people viewed the relationship.

If a qualifying de facto relationship exists then the relationship is treated much the same as a marriage under the Property (Relationships) Act and will subject to the same rules when it comes to dividing property.

Marriage (and Civil Unions)

Marriages are more clear-cut than de facto relationships. When two parties marry there is an unequivocal line which divides pre-marriage from post-marriage and with that line comes legal responsibilities. In a sense the parties opt-in to the legal implications of marriage. Despite the traditional priority of marriages in the past, spouses in most instances are not treated different to de facto partners under the Property (Relationships) Act.

Contemporaneous relationships

In considering contemporaneous relationships the Court must first assess the circumstances and determine whether there is more than one qualifying relationship. A recent High Court case has gone through that assessment. In that case a husband and wife separated and the wife brought relationship property proceedings. Some years after the proceedings had been issued the husband claimed he had been in a de facto relationship with another woman (“Ms X”). The wife considered this as a trial tactic and a way of decreasing the property pool.

The husband had been having an affair with Ms X, who he worked with, for 27 of the 47 years he was married. Throughout the marriage the wife did not know of her husband’s other relationship. The High Court had to determine whether the Family Court had been correct in its decision that a qualifying de facto relationship did not exist. The Family Court made the following principal findings in its assessment of the alleged de facto relationship.

• There was no financial interdependence.
• The husband and Ms X did not present themselves as a couple to the world.
• The husband’s primary commitment was to his wife and he continually tried to maintain his marriage.
• Ms X’s commitment to the husband was not reciprocated on the same level.
• They did not have a common residence and they maintained separate homes.
• They did not acquire any joint property.
• There was a lack of commitment on the part of the husband to share a life together as a couple.

The husband and Ms X appealed from the Family Court decision arguing the judge erred in finding there was no financial interdependence or public face to the relationship and that he erred in applying a comparative approach between the marriage and the de facto relationship.

Financial interdependence

The husband and Ms X operated separate bank accounts and they did not acquire any assets jointly. There was no real intermingling of their financial affairs. The Family Court also noted that neither party had provided for the other in their Wills which were settled after the husband had separated from his wife.

Public face of the relationship

The husband and Ms X argued that there were people who knew of their relationship, that they attended events as a couple, and wore commitment rings. However, there was no question that the existence of the relationship was kept hidden from the wife and children and those who may have passed information onto them. The husband made substantial and continuous efforts to keep the relationship a secret. The Family Court acknowledged that Ms X may have thought she and the husband were presenting themselves as a couple, but there was no doubt that position was not shared by the husband.

Comparative approach

The High Court considered the Family Court’s approach was correct. It acknowledged that given the property consequences which follow, the threshold required to establish a de facto relationship is a high one. The High Court noted where there are two relationships running contemporaneously it is not necessary to view each in isolation from the other. Rather, the proper approach is to have regard to one relationship to an extent when considering the other relationship.

In that case the marriage had endured 47 years during which the husband and wife had maintained a mutual commitment to a shared life through being married and raising children, they shared a family home and all the public consequences of that. The husband had maintained adamantly throughout the marriage that it was an exclusive relationship. He made no such commitments to Ms X. The appeal failed.

Effect on division of relationship property

Where contemporaneous relationships are proven to exist this will have an impact on the property pool available for division in each relationship. Sections 52A and 52B of the Property (Relationships) Act provide that in such circumstances it is necessary to determine what property is attributable to which relationship and divide accordingly. This means where there may be property which would usually fall for division between parties to a marriage which is removed from the property pool to be divided elsewhere. Where it is not possible to attribute property to either relationship then the property will be divided in accordance with the contribution of each relationship to the property.

Conclusion

It is possible for a person to be in contemporaneous relationships, whether that is a marriage or civil union and a de facto relationship or two de facto relationships. For contemporaneous relationships to have an effect on property entitlements it must first be shown that they are qualifying relationships under the Property (Relationships) Act. This will require an assessment of the factors relevant to the existence of a de facto relationship and may require a comparative approach. If contemporaneous relationships exist then the property pool for division may be split between the relationships or divided based on contributions.

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