A Case Study
In August 2017, the Full Court of the Family Court of Australia in Sha & Cham confirmed the finding of a de facto relationship where a couple had shared the same residence for only limited periods of time and the woman had given up her employment as a sex worker to undertake IVF treatment in order to have a child to her partner (who was then married to another person).
These circumstances were peculiar to this couple. The important thing to know when considering your circumstances, is that even where you may have had a close and loving relationship over an extended period with your partner, you cannot just assume that the law will treat your relationship as a de facto relationship. However, the determination of your relationship as a de facto relationship where you were not married will be important in also determining whether you and your former partner may have a claim for property settlement at family law.
Our experienced Brisbane Northside Family Lawyers can assist you to know where you stand at family law and how to resolve your family law matters to give you the best outcome available for your circumstances.
In this blog, we look at how the Court in Sha & Cham determined that there had been a de facto relationship. Although the circumstances of that couple in that case were perhaps less usual, there are still some important aspects of the case that have general application.
The parties in that case (whom we will call “Larry” and “Lucy” for ease of reference though these were not their actual names) had met in 2011 in a massage parlour where Lucy worked as a sex worker. A few months later in early 2012, they began having a sexual relationship at a time when Larry was married.
Larry separated from his wife in October 2012 and they divorced in 2014 but by that time, Larry and Lucy had had a child together.
By mid-march 2012, Lucy had stopped working as a sex worker at Larry’s request and Larry was seeing her at her home, staying overnight on some occasions, although the parties disputed how regular and frequent those visits had been.
The parties had discussed having a baby together and around April 2012, Larry had started paying Lucy about $2,000 per month for her mortgage and other expenses. In May 2012, the parties had again discussed the idea of having a baby.
Larry bought a couch for Lucy and in 2012 he had transferred her an aggregate amount of some $18,000 in a few lump sums with some $8,000 of that amount and his payment of Lucy’s car insurance being made soon after he and Lucy entered into a financial agreement pursuant to s 90UC of the Family Law Act 1975 (Cth) (“the Act”)in August 2012.
That agreement provided that Larry would:
- pay Lucy 50 per cent of value of his matrimonial home within two years of the birth of their child;
- pay Lucy $400 per week during their de facto relationship; and
- pay $400 per week (with a 10 per cent increase every year) for the child’s living costs and any reasonable expenses of the child until the child turned 18.
Under that agreement the parties also agreed that if their relationship broke down, they would deal with their property in accordance with the agreement, upon either party making a Separation Declaration.
The month following entering into that agreement, Lucy became pregnant through IVF treatment.
Lucy gave birth to Larry’s daughter in mid 2013, with Larry claiming that since that time, he had paid Lucy about $2,500 per month.
Larry and Lucy had relationship difficulties and in 18 November 2013, Lucy signed a separation certificate as required by the financial agreement.
Lucy brought proceedings in the family court seeking specific performance of the financial agreement.
The primary judge found that the Court could hear her application on the basis that a de facto relationship existed between the parties as at the time when they had executed the financial agreement.
On appeal, Larry disputed that there had been a de facto relationship at that time and the finding of the primary judge that the parties had shared a common residence at Lucy’s home “for relatively confined periods of time”.
The Full Court allowed the appeal but only to the extent of replacing in the order made by the primary judge the statement as to the period of the de facto relationship.
The Full Court confirmed the finding of the primary judge that there had been a de facto relationship at the time that the financial agreement entered into between the parties had been signed.
Meaning of de facto relationship
The Full Court considered the terms of s 4AA of the Family Law Act 1975 which provides:
(1) A person is in a de facto relationship with another person if:
(a) the persons are not legally married to each other; and
(b) the persons are not related by family (see subsection (6)); and
(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.
A de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship. The fact.
Did Larry and Lucy have a relationship as a couple?
The Family law Act 1975 (Cth) sets out factors that may be taken into account in determining if a couple is in a de facto relationship but it is not necessary that a Court make a finding in relation to any of those circumstances in deciding whether persons have a de facto relationship.
Those circumstances may include any or all of the following under section 4AA(2) Family Law Act 1975 (Cth):
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
The trial judge considered various circumstances in Sha & Cham but we will focus on the following:
Common Residence | Brisbane Northside Family Lawyers
The fact that Larry and Lucy had not themselves used terminology such as “living” to describe Larry’s presence at Lucy’s home but that they instead described it as “staying” or “visiting” could not determine whether they had a common residence.
The facts and circumstances of the particular persons must be considered in order to determine whether there was a common residence.
A person may live at more than one place. Parties can be in a de facto relationship even though one of them may at the same time be in a de facto relationship with another person or married to another person.
A couple can be in a de facto relationship without residing in the same home on a full time basis. “Living together” can include a situation where parties live together for only a small part of each week or for limited periods. Even in that situation, a couple can be said to be “living together on a genuine domestic basis” provided that other circumstances support that conclusion.
Degree of Commitment to a Shared Life | Brisbane Northside Family Lawyers
The Full Court in Sha & Sham found no reason to disrupt the finding of the primary judge that the parties showed a commitment to a shared life.
A regular and constant feature of the parties’ relationship had been “Larry’s” assurances to Lucy that the wanted them to have a child together and that he would provide Lucy and their future child with financial support. Larry’s having entered in to the financial agreement demonstrated that commitment.
Lucy had shown her commitment to a shared life with Larry in that she had accepted his assurances about providing financial support for her and the child; gave up her employment as a sex worker and committed herself to trying to have a child through an IVF programme.
The fact that Larry may not have wanted to divorce his wife was not accepted as evidence that he did not have a commitment to a shared life with Lucy. The Full Court referred to the finding of the primary judge that Larry’s behaviour showed “that he desired to have both his relationship with his wife and his relationship with the [respondent]. His behaviour has been such as to demonstrate considerable effort by him in endeavouring to maintain both relationships” (at ).
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