De Facto Relationship – Dispute as to duration of de facto relationship

Brenna & Kolby [2023] FedCFamC2F 1523

Summary:

This case did not involve a dispute as to whether a relationship existed but whether when the de facto relationship commenced and the date of the final separation. The date of separation is significant as property proceedings for a de facto relationship cannot be brought after two years of the separation date, (FLA s 44(5)). The Court could also grant leave to apply after the end of the standard application period (FLA s 44(6).

This issue in this case focus on when the parties separated, thus, whether property assets can be divided.

Applicant Submission:

Final separation occurred in late 2020, which was ten years after date of commencement of relationship. Applicant provides that there was an earlier separation, but subsequent reconciliation occurred.

Applicant claims the property was purchased in 2018 in respondent’s sole name. Applicant states property was purchased when the parties were in a de facto relationship, he contributed to deposit and mortgage payment and non-financial contributions to the property. The property has since been sold.

Respondent Submission:

Parties separated on a final basis in March 2016, after an eight-year relationship. Respondent explains that there was no reconciliation, other than for a few weeks in 2018, even if they did live under the one roof from time to time.

Respondent states property was purchased and sold post separation and the applicant made minimal financial and non-financial contributions.

The Law:

s 4AA of the Act states, (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…; 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.

Courts Reasons:

The Court considered elements of what is a de facto relationship including the nature and extent of their common residence; whether a sexual relationship exists; the degree of financial dependence or interdependence; the ownership, use and acquisition of their property; the degree of a mutual commitment to a shared life; care and support of children; reputation and public aspects of relationship. The Court stated a brief reconciliation alone is not sufficient to establish a recommencement of a de facto relationship.

Court Ordered:

For the purposes of the Family Law Act 1975 (Cth), pursuant to s 90SM, the parties were in a de facto relationship between 2008 and May 2016. The court was not satisfied that the applicant would suffer hardship if he were not granted leave to apply after standard time.