Married and in a De Facto Relationship

By Georgia Bishop, Lawyer

Whilst it is common knowledge that polygamy in Australia is illegal, this does not prevent the phenomenon where a party is married and in a de facto relationship simultaneously or in two de facto relationships according to the law for purposes of a property division.

For example, in the recent case of Cisek & Farrah (No.2) [2023] FedCFamC1F 804 the facts (as summarised) were:

1. The applicant and the first respondent had been in a de facto relationship between 1998 to 2015 and had completed a religious marriage ceremony in 1999.
2. The first respondent and applicant have two adult children.
3. The applicant married the first respondent’s brother (“Mr D“) in 1999.
4. Mr D was falsely recorded as the father of one of the children.
5. On 21 April 2023, another judge of the Court, dismissed the applicant’s application to declare the marriage void and nullify the marriage.
6. The first respondent, whilst he claimed to have a de facto relationship with the second respondent from the early 2000s, was declared by the Court to be in a de facto relationship with the second respondent from October 2016 until on or about September 2017.
7. The first respondent had distributed funds to Mr D.
8. The applicant sought a property settlement, and the second respondent sought a sum of monies pursuant to a constructive trust over a property owned by the first respondent.

In that case, Mr D was a not a party to be a proceeding and the outcome was that the applicant was entitled to a property settlement and the second respondent a sum of monies.

So what does this mean for a property division? Provided the simultaneous relationships are established by law (that is, declaration of the existence of a de facto relationship/s and/or a valid marriage) arguably all parties to the relationship/s will need to be added to the proceeding as their rights will be impacted.

In most cases, parties are unaware their former partner had a relationship with another person whilst they were with them..

In Chen & Chen and Ors [2018] FamCA 828 the application before the Court was to set aside a financial agreement between a husband and de facto partner. The facts were:

1. Mr Chen and Ms Chen were husband and wife and had three children. At the time of the hearing, they were estranged and separated.
2. Mr Chen and Ms Quen were in a de facto relationship whilst Mr Chen and Ms Chen were married. At that time, Ms Chen was not aware of Mr. Chen’s relationship with Ms Quen.
3. Mr Chen lived part of his time with the Ms Quen and otherwise lived with Ms Chen.
4. Mr Chen and Ms Quen had two children.
5. Ms Quen was aware of Mr Chen’s marriage to Ms Chen and his family with Ms Chen.
6. Mr Chen and Ms Quen had entered into a financial agreement.
7. Ms Chen’s children participated in Mr Chen and Ms Quen’s discussions around the financial agreement.
8. Ms Chen denied any awareness of the financial agreement.

In that case, the Court found Mr Chen and Ms Quen’s actions were reckless in circumstances where they were clearly aware that the terms of the financial agreement might impact on Ms Chen’s rights under the Family Law Act 1975 (Cth) (“the Act“). Accordingly, the Court set aside the agreement.