Why a 25-year relationship was not found to be ‘De Facto’ – Braun v Sanchez [2026]

A recent decision of the Federal Circuit and Family Court of Australia (FCFCOA) highlights an important principle in family law and deciding whether a party has a claim to a property adjustment: the length of a relationship alone does not determine whether a de facto relationship exists.

In Braun v Sanchez (FCFCOA), the Court considered whether a same-sex relationship spanning approximately 25 years met the definition of a de facto relationship under the Family Law Act 1975 (Cth). Despite the parties sharing a close and largely exclusive personal relationship over multiple decades, the Court ultimately found that it did not have jurisdiction to make property settlement orders because the statutory requirements for a de facto relationship were not established.

Background

The Applicant, aged 46, sought property adjustment orders under Part VIIIAB of the Family Law Act following the breakdown of an alleged de facto relationship with the Respondent, aged 74.

The Applicant contended that the parties had been in a de facto relationship from 1998 until their separation in October 2023. The Respondent denied this, asserting that the parties shared a close personal friendship rather than a relationship as a couple living together on a genuine domestic basis.

The dispute was significant given the size of the asset pool, which was approximately $8 million.

The legal test

Before the Court can make orders adjusting property for separated couples, it must first be satisfied that a de facto relationship existed.

Section 4AA of the Family Law Act provides that a person is in a de facto relationship with another person if:

• they are not legally married to each other;
• they are not related by family; and
• having regard to all the circumstances, they have a relationship as a couple living together on a genuine domestic basis.

Section 4AA(2) identifies a range of factors the Court may consider, including:

• the duration of the relationship;
• the nature and extent of any common residence;
• whether a sexual relationship existed;
• financial dependence or interdependence;
• ownership and acquisition of property;
• mutual commitment to a shared life; and
• the public and social aspects of the relationship.

Importantly, no single factor is decisive. The Court must assess the overall nature of the relationship.

The evidence considered

There was little dispute that the parties had maintained a close and intimate relationship for many years.

The Applicant gave evidence that he regularly stayed at the Respondent’s home, kept personal belongings there, held a key to the property, and spent holidays and Christmases with the Respondent. He also said he undertook some domestic tasks at the Respondent’s property such as cooking and cleaning.

However, a number of other factors pointed away from the existence of a de facto relationship.

Separate residences

A significant issue was whether the parties maintained a common residence.

Although the Applicant spent time at the Respondent’s property, he maintained separate accommodation throughout the relationship. He later purchased a home with his brother and continued to live separately.

The Court noted that the Applicant never used the Respondent’s address on official documents, including tax, immigration and other records.

Financial separation

The parties kept their financial affairs entirely separate.

There were:

• no joint bank accounts;
• no jointly owned property;
• no significant financial interdependence; and
• no evidence of pooled resources.

While the Applicant was financially dependent on the Respondent during some earlier years, the Court found that he was also receiving support from his parents during that period.

Public presentation of the relationship

The Court closely examined how the parties presented their relationship to others.

Although there was evidence of social interaction and shared activities, there was limited evidence that the parties publicly represented themselves as partners. The Court also noted that, even after the Applicant was no longer concealing his sexuality from family and friends, official documents continued not to identify him as being in a de facto relationship.

The impact of sexuality and privacy on the evidence

An important feature of the case was the Applicant’s evidence that he did not openly identify as gay during the earlier years of the relationship.

The Applicant said he maintained separate accommodation while studying and later continued to live separately because he had not disclosed his sexuality to family members. The Court accepted that this context was relevant when assessing why the parties may not have openly presented themselves as a couple during the early years of their relationship.

The decision reflects the modern understanding that de facto relationships do not always follow traditional patterns of cohabitation or public acknowledgment. As the High Court observed in Fairbairn v Radecki, people may share their lives in a variety of ways and physical cohabitation is not an essential feature of every de facto relationship.

However, Judge Harper ultimately placed significant weight on the fact that, even after the Applicant had disclosed his sexuality to family and friends, many of the same features continued. The parties maintained separate residences, kept their financial affairs separate and did not formally present themselves as being in a de facto relationship on official records.

The Court noted that by around 2015, and certainly by 2020, the Applicant no longer needed to conceal his sexuality from those closest to him. Despite this, there was still little objective evidence of a merger of their lives in the way commonly seen in de facto relationships.

As a result, the Court did not regard the Applicant’s earlier need for privacy as determinative. While it explained some aspects of the relationship in its earlier years, it did not overcome the broader evidence that the parties had not established a common residence or sufficiently integrated their lives over the course of the relationship.

The Court’s findings

Judge Harper found that the parties had maintained a mostly exclusive relationship over a period of approximately 25 years.

However, applying the principles set out in Fairbairn v Radecki and other authorities, the Court concluded that the evidence did not establish that the parties were “living together on a genuine domestic basis” as required by section 4AA of the Act.

Judge Harper was not satisfied that the relationship reflected the degree of integration typically associated with a shared domestic life. As a result, the Court found that the statutory definition of a de facto relationship had not been met and that the Court therefore lacked jurisdiction to determine the Applicant’s property settlement claim.

Just and equitable considerations

Although it was unnecessary to decide the matter at hand, the Court considered whether, if jurisdiction were established, in the event of an appeal, property adjustment orders would be just and equitable in the circumstances.

Relevant factors included:

• the Respondent’s age (74 years);
• the Respondent’s ownership of his home since 1992;
• the fact that the Respondent’s property generated income through room rentals (this would need to be sold or refinanced if a split was required);
• the Applicant’s good health, savings and property interests; and
• the absence of any financial integration between the parties.

The Court indicated it would not have been persuaded to make orders which required the Respondent to sell his property or incur substantial debt at his age.

Key takeaways

This case serves as a reminder that:

• The Court will assess the relationship as a whole, rather than focusing solely on its duration.

• Separate residences, separate finances and limited public recognition of a relationship may weigh against a finding that a de facto relationship existed.

• The Court recognised that social, cultural or personal factors may explain why a couple does not publicly acknowledge their relationship. If those circumstances change, however, the Court will still require objective evidence that the parties integrated their domestic, financial and personal lives to establish a de facto relationship.

• Evidence of a shared domestic life is critical.
• A Party seeking property orders must establish that they lived together as a couple on a genuine domestic basis before the Court can exercise jurisdiction.

Ultimately, companionship, affection and a long-term exclusive relationship may not, by themselves, establish a de facto relationship. The Court must be satisfied that the parties sufficiently integrated their lives to meet the statutory definition under the Family Law Act.

How Coulter Legal can help

Early advice can help you act with clarity, meet court requirements and make informed decisions about the next steps. Contact Coulter Legal’s Family & Relationship Law team today on 03 5273 5273.