Establishing the validity of a de facto relationship can become a messy affair. Illustration: Frank Maiorana


SOMETIMES it just might pay to get married. Courts trying to determine whether former de factos should be given the legal status of spouses in property disputes are having to delve into personal details of people's romantic lives and household habits as never before.

With former de factos now able to litigate property claims under the Family Law Act, judges and magistrates are accepting as evidence to prove that a de facto relationship existed such things as endearments written in Valentine's Day and birthday cards, racy texts, heartfelt emails, and even details of lingerie worn.

One man out to show he was a genuine de facto has even given sworn testimony he had the names of his ex and her child from another relationship tattooed on his arms. Obligingly, he unveiled his tatts to the court.

Many such legal stoushes have broken out over what lawyers call a ''threshold question'': whether a dating relationship or affair has morphed into a genuine de facto relationship.

Without the irrefutable proof of a wedding certificate, this is proving a curly question for the courts, which ''have been given extraordinarily wide discretion'' to make the factual decision, according to family law expert Professor Patrick Parkinson.

Kuppy Nambiar, from Mathews Family Law, agreed: ''People wanting to claim a de facto relationship are being subjected to a very detailed examination of their lives - and, in my experience, it's become extraordinarily messy, intimate and intrusive.''

An extended checklist for the courts to consider includes whether the alleged de factos had a sexual relationship, the duration of their relationship, whether they had interlinked finances, how children were cared for and the extent of a ''mutual commitment to a shared life''.

None of these, however, are definitive. In a famous battle last year, a woman known as Ms Jonah had a 17-year affair with a married man but was eventually deemed not to be in a de facto relationship.

Her lover, a Sydney businessman known by the pseudonym Mr White, had kept their relationship conducted over two states secret from his wife and children for most of those years.

In his judgment, Justice Peter Murphy noted the man had conceded his relationship with Ms Jonah was exclusive ''(save for 'a few one night stands') and, of course, the not insignificant matter of the relationship with his wife''. The evidence in the case included emails and the use of "pet names". A portrait of the pair was also tendered as a court exhibit.

In a slew of recent cases, lawyers say family, friends, mothers and even grandmothers are also being called to court or to provide affidavits swearing to the existence or otherwise of the disputed relationships.

Juliet Behrens, an author and lawyer at the Canberra firm Dobinson Davey Clifford, said the de facto law, which has been in place for only three years, is proving in some cases to be ''a big invasion of privacy and it is uncomfortable''. But she said the national law applying to de facto property settlements, and enforceable in the courts, is important ''because otherwise one or other party can be left quite vulnerable''.

She said that once a man or woman satisfies the court they are a de facto, it does not mean there is 50:50 settlement as they then have to go on to establish their claim to property, which can be another long battle.

Melbourne family lawyer Ralph Glezer said: ''All of the issues in de facto cases can be hard-fought, and costs are increasing as a result of this.''

In contrast, lawyers say property claims for married couples are more seamless as they rarely involve the parties divulging their personal habits or sexual proclivities. The exception is if the conduct, for example, involves one of them lavishing expensive gifts on a mistress or toyboy and the spending diminishes the value of their joint property.

''Married people are just not subject to the same sort of scrutiny as de factos in property disputes because they can rely on a marriage certificate to prove their relationship existed,'' said lawyer Ms Nambiar.

The Family and Federal Magistrates courts can hear matters involving de facto couples, including those in a same-sex relationship, if they separated on or after March 1, 2009.