Court found a de facto relationship to have ended when one of the parties left the property, and not earlier as a separation under the one roof
In A & G [2009] FCWA 110 (25 August 2009) at paras 1-57 Thackray CJ found a de facto relationship to have ended when one of the parties left the property, and not earlier as a separation under the one roof.
The Court concluded at paras 50-56:
- “For the reasons set out above, I have found that [Mrs A] continued to reside in the home in [the country] with [Mr G] until early in September 2005. This conclusion does not, however, resolve the jurisdictional question which is directed to determining the date on which the de facto marriage relationship ‘ended’.
- In determining when the de facto relationship ended, I must have regard to the provisions of s 13A of the Interpretation Act 1984, which sets out the following factors to be taken into account in assessing whether there is a de facto relationship:
- the length of the relationship between them;
- whether the two persons have resided together;
- the nature and extent of common residence;
- whether there is, or has been, a sexual relationship between them;
- the degree of financial dependence or independence, and any arrangements for financial support, between them;
- the ownership, use and acquisition of their property (including property they own individually);
- the degree of mutual commitment by them to a shared life;
- whether they care for and support children;
- the reputation, and public aspects, of the relationship between them.
I agree, with respect, with the observations of Mahoney J in Hibberson v George (1989) DFC 95-064, where his Honour said (at p 75,766):
‘There is, of course, more to the relevant relationship than living in the same house. But there is, I think, a significant distinction between the relationship of marriage and the instant relationship. The relationship of marriage, being based in law, continues notwithstanding all of the things for which it was created have ceased. Parties will live in the relationship of marriage notwithstanding that they are separated, without children, and without the exchange of incidents which the relationship normally involves. The essence of the present relationship lies, not in law, but in a de facto situation. I do not mean by this that cohabitation is essential to its continuance: holidays and the like show this.’
These comments were made in the context of a case where one of the parties had, in fact, left the home but claimed that the relationship was still ongoing. In the present case, part of the cross-examination of [Mrs A] was designed to establish that although the parties may have continued to reside in the same residence, the relationship had ‘ended’ prior to the date of final physical separation.
In answering questions put to her, [Mrs A] acknowledged that during the last month or so of cohabitation, the parties were negotiating the terms on which she would leave the property. She went so far as concede that she regarded the relationship as having ‘ended’ prior to her moving out of the property. This is not, however, in any way determinative of the matter. The date on which a de facto marriage relationship has ‘ended’ is a matter of law and not a matter for a party themselves to determine. I am quite satisfied that in acknowledging that she regarded the relationship as having ‘ended’ in August 2005, [Mrs A] was using the word in the colloquial sense in that she was completely disillusioned with the relationship and had determined that she would leave the home and live elsewhere.
I am not, however, satisfied that the relationship actually ‘ended’ until [Mrs A] left the property. She and [Mr G] continued to live under the same roof. They continued to share a bed (although [Mrs A] said they had not ‘touched each other’ for the last year). They continued to operate a joint account. [Mr G] continued to control the joint account and pay to [Mrs A] the amount that he considered was appropriate after meeting joint expenses. The fact that the relationship was exceedingly unhappy and was clearly going to come to an end does not mean that it had ‘ended’ within the meaning of the legislation.
For these reasons I am satisfied that the parties not only separated in September 2005 but that the relationship ended in that month. Hence [Mrs A]’s application for property settlement was filed within the time permitted by the legislation. Leave was not required to commence proceedings.”