Monday, 2 June 2014

Having sex with others means you can still be in a de facto relationship: Family Court

Having sex with others during the duration of a relationship can still mean that you are in a de facto relationship, even if you consider that you aren't, according to a recent Family Court decision, although as Justice Tree stated, "although there may have been some aspects of the parties’ relationship which some may regard as unusual or unconventional."

In the case, known as Crowley and Pappas, a gay couple had lived together in a de facto relationship from 1987 until 2005 or 2006, when they split up. Although they moved in together in 2005 or 2006, the question was whether the de facto relationship had resumed. If it had, as Mr Crowley maintained, then it continued until 2011. Mr Pappas maintained that they had lived as flatmates.

One of the problems with that approach was about their sex life. Whether parties have sex is not the be all and end all about whether there is a de facto relationship. There are many couples, after all, who do not have sex, and many other couples who are not in a de facto relationship who do have sex.

Mr Pappas said that Mr Crowley had previously been unfaithful, before they split in 2005 or 2006 , "seeing other men behind my back whom he contacted through a  gay  chat site" and that in late 2005 he discovered that Mr Crowley was seeking sex with another man. His evidence was that Mr Crowley said “I want an open relationship.” To this Mr Pappas replied “I do not want an open relationship. That is not what a relationship is all about....I was devastated. I did not want an open relationship or to be with other people and I just wanted to have a loving and committed life partnership with [Mr Crowley]. [Mr Crowley] however expressed to me that [he] did not want this any more.”

Mr Pappas then said that about four weeks later, Mr Crowley brought another man to their home and invited Mr Pappas to join in sex with them, which invitation Mr Pappas declined. Nonetheless Mr Crowley and the other man engaged in sex in front of Mr Pappas. After that event Mr Pappas says that he told Mr Crowley “[o]ur relationship is over. What just happened makes me feel physically ill. All trust between us is gone. If you want an open relationship you can have one, but not with me.” Mr Pappas said that from that day onward, he considered that their de facto relationship was over.

Mr Pappas then says, after they started living together again:

[Mr Crowley] pressured and intimidated me into sleeping in the same bed as [him], and I succumbed, however there was absolutely no sexual contact or intimacy between [him] and I.I did not want to share a bed with [Mr Crowley] and I locked him out of the bedroom as often as I could and I would sleep in other rooms to try to avoid [him] whenever possible.
[Mr Crowley] became furious and would humiliate me whenever I broached the topic of having separate sleeping arrangements and he would become aggressive, storming off and shouting. I was intimidated by [him]. I kept sleeping in the same bed as [him] to keep the peace and avoid [his] fury. I believe that [Mr Crowley] would physically harm me if I continued to disagree with [him].
When [Mr Crowley] and I did share a bed [he]and I each slept away from each other and there was absolutely no sexual contact or intimacy between us."

Mr Pappas did concede that there had been sex between them after they started living together again:


  • on one occasion where it was said that the parties had jointly engaged in sex with a third person whilst holidaying overseas. Mr Pappas appeared to concede that event, but said that on the night in question his drink had been spiked. 
  • Mr Crowley  volunteered the names of two persons with whom he said both he and Mr Pappas had engaged in mutual sexual encounters, along with “several others whose names I don’t know,” which assertion was not thereafter squarely challenged by Mr Pappas. Mr Crowley went on to say that he had opened an account with a particular internet site in the mid to early 2000’s, and that both he and Mr Pappas used it to find third parties to bring into their relationship for sexual encounters. Faced with such specific assertions, Mr Pappas chose not to investigate or challenge them further in his cross-examination of Mr Crowley. 
Justice Tree stated:

The principal concern of Mr Pappas appears to be that the parties did not have a mutual commitment to an exclusive, monogamous, sexual relationship. Whether by virtue of that or otherwise, he further said that he had no mutual commitment to share his life with Mr Crowley, because in fact he was planning, upon achieving financial security, to “make a stand, after which it was going to be my rules from now on.” Leaving aside that his evidence as to that matter was not challenged, in my opinion Mr Pappas did indeed intend, after 2005, to ensure that he became financially independent of Mr Crowley My view is that he was so hurt by his long-time partner’s desire to have a non-monogamous relationship, that he wanted to be able to wholly separate from him – emotionally, physically, financially and otherwise – in the event that circumstances in the future inclined him so to do.

However that finding does not preclude Mr Pappas nonetheless being in a de facto relationship. It is equally consistent that Mr Pappas was keeping his options open to “escape” the relationship, if things went badly, but also to continue the relationship if things were tolerable. Indeed, such a strategy has a degree of common sense to it.

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