De Facto Relationships a Matter of Time

by | Family

Recent decisions of the Full Court of the Family Court re-emphasize the importance of keeping a keen eye on dates when living in a de facto relationship.

De Facto Relationships – Critical Dates

There are two critical dates that should be borne in mind. The first date is the date on which cohabitation in a de facto relationship commenced and the other is the date on which the de facto relationship ceased.

A De Facto Relationship between two people is generally indicated when  “having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis” (Section 4AA (1)(c) Family Law Act).

Rights under the Family Law Act will begin to accrue if the de facto relationship continues for a period two (2) years.

Time Limitations

Following the breakdown of a de facto relationship time limitations apply in regard to making an Application to the Court seeking the Court’s intervention in regard to an adjustment of the assets of the parties to a de facto relationship. The limitations are set out in Section 44 of the Act. Unlike marriages where the limitation period is 2 years from the date of a Divorce Order, the usual limitation period in de facto relationships is 2 years after the end of the de facto relationship or 12 months after a Financial Agreement between the parties has been set aside or found to be void. We all know that time passes surprisingly quickly and it is relatively easy for someone to let a limitation period to pass.

Family Court Decisions

The recent judgments of Simonds (deceased) & Coyle [2019] FamCAFC and Herford & Berke (No2)[2019] FamCAFC 182 are timely reminders to keep an eye on the time in a defacto relationship.

Simonds has a complex procedural history. The wife commenced an Application in the Federal Circuit Court in 2017. She asserted that the relationship ceased in 2015. The husband died two months after the application was commenced and had not filed a Response. Sometime later a Response was filed by the deceased’s Legal Personal Representatives. The Response asked the Court to dismiss the wife’s Application because the separation had occurred in 2013 and therefore the wife’s Application was out of time.

The presiding Judge allowed the wife to file an Amended Application. She did so in 2018 and in that Application sought the requisite leave to file her Application out of time. The Amended Application however was not filed until after the husband had died. The primary judge allowed the request to extend time. The husband’s Legal Personal Representative appealed.

Essentially the Full Court on Appeal found that primary Judge was wrong to grant the wife an extension of time because the application to extend the time was not filed until after the husband had died. The wife’s first application failed because the primary judge found that separation occurred in 2013 and the amended application failed because the Full Court held that on the failure of the primary application which was filed while the husband was alive there was no valid action before the court and so the Court did not have jurisdiction. The jurisdiction could not be re-enlivened by the Amended Application which was filed after the husband had died.

The matter of Frost (deceased) & Whooten [2018] Fam FAFC  is an interesting parallel to issues raised in Simonds. In Frost the parties were married but separated. The husband was involved in a very serious accident. The day after the accident he died. On the day of the accident the wife filed an Application in the Federal Circuit Court using the electronic lodgement system. The application was received by the Registry at 7.40 p.m. on the day when the husband was last alive. However because the application had not been received by the Registry by 4.30 p.m. Australian Capital Territory time, by operation of Rule 24.05(2) it was not filed and therefore not commenced until the following day, after the husband had died. Because the application was not filed during the husband’s lifetime the Court did not have jurisdiction to deal with it and therefore the application was dismissed.

Herford involved an application made to the Court in 2017. In 2018 the presiding Judge made declaration that a de facto relationship existed from 2002 or 2003 and ceased on 1 March 2009. Consequently the application for property settled following the breakdown of the de facto relationship was brought out of time (by many years) and was dismissed.

The findings of the Judge at first instance were upheld on Appeal.

In Herford the parties met in about 2002 and commenced living together in 2003. They remained living together under the one roof until about November 2008. At this time the husband moved out of the shared house to live in a house owned by the wife only a short distance from the previously shared house. A relationship continued between the parties. The question for the Court was what was the nature of that relationship. The wife asserted that the relationship after the husband had moved out in 2008 was the same as it had been prior. The husband asserted that after he moved out in 2008 the relationship was that of boyfriend and girlfriend (the husband did assert for much of the trial that the relationship was always one of girlfriend and boyfriend but did eventually concede that there was a period of cohabitation in a de facto relationship).

If you’re experiencing a similar situation, remember that our separation and property settlement lawyers are here to guide you.

Factors Relevant to Determine End of De Facto Relationship

The Judge considered all aspects of the relationship from commencement until it ended. In arriving at the conclusion that the de facto relationship ended on 1 March 2009 the Judge placed weight on five facts these included:

  • The cessation of co-habitation
  • The fact that the Husband paid rent to the wife;
  • The cessation of the provision of daily assistance and the completion of day to day tasks normally associated with parties living together in the same household;
  • The fact that the husband considered that the relationship was non-exclusive;
  • The fact that the husband would not commit to a long term relationship and marry the wife;
  • The fact that the husband and wife thought that they should report their changed circumstances to Centrelink.

A relationship breakdown is a difficult time emotionally and often very confusing and stressful, however, as we learn from the cases above it remains important to keep an eye on the time. A family lawyer or separation lawyer can help you through the difficult times.

For further information please contact Michelle Crichton on 8362 6400 or email Michelle CrichtonJoin our mailing list to receive updates and advice on current issues.

  • Michelle Crichton

    About the author: Michelle Crichton

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