Are We; Aren’t We? Deter­min­ing whether a De Fac­to rela­tion­ship exists

As soci­ety and our views about mod­ern rela­tion­ships change, we have seen few­er peo­ple rush­ing to the alter, with many hap­py to tack­le life side by side as De Fac­to part­ners. Whilst for mar­ried cou­ples there is lit­tle dif­fi­cul­ty prov­ing the exis­tence of a mar­riage (with the help of a Mar­riage Cer­tifi­cate) it can be hard­er to deter­mine whether a cou­ple is in a De Fac­to relationship.

Whilst De Fac­to rela­tion­ships can be reg­is­tered, the real­i­ty is that very few peo­ple take this for­mal step.

The Fam­i­ly Law Act sets out the cri­te­ria for estab­lish­ing a De Fac­to rela­tion­ship includ­ing that it be two peo­ple (same or oppo­site sex) who:

1. Are not legal­ly mar­ried to one anoth­er or relat­ed fam­i­ly; and
2. hav­ing regard to all the cir­cum­stances of their rela­tion­ship, have a rela­tion­ship as a cou­ple liv­ing togeth­er on a gen­uine domes­tic basis for at least 2 years.

Yet this expla­na­tion often caus­es con­sid­er­able uncer­tain­ty and con­fu­sion. Phras­es like ​‘liv­ing togeth­er’ and ​‘gen­uine domes­tic basis’ can be par­tic­u­lar­ly con­fus­ing in cir­cum­stances where many cou­ples are now choos­ing to live in two sep­a­rate households.

To help shed light on whether a De Fac­to rela­tion­ship exists, the Court looks at a num­ber of fac­tors includ­ing how long the rela­tion­ship last­ed, whether the cou­ple had a com­mon res­i­dence, whether they had a sex­u­al rela­tion­ship, whether they pro­vid­ed finan­cial sup­port for each oth­er, whether they owned or used prop­er­ty togeth­er, whether they had a mutu­al com­mit­ment to a shared life, whether they cared for and sup­port­ed chil­dren, and how the rest of the world saw them. 

This last cri­te­ri­on refers large­ly to things such as whether the cou­ple’s fam­i­ly and friends knew of them as a cou­ple or whether their rela­tion­ship was ​‘secret’. Indeed, in this era of social media – pho­tos, posts and com­ments online can also be indica­tive of whether peo­ple are known as a cou­ple by their community. 

Whilst it may seem rel­a­tive­ly straight for­ward, things are not always clear, such as in the 2017 case of Sha and Cham.

Mr Sha, who was mar­ried to Mrs Sha, met Ms Cham in a mas­sage par­lour where she was work­ing a sex work­er. Mr Sha was a reg­u­lar client of Ms Cham and short­ly after meet­ing, they began a rela­tion­ship. Dur­ing this rela­tion­ship, Mr Sha remained mar­ried and liv­ing with Mrs Sha. 

Less than a month after they first began their rela­tion­ship on a non-com­mer­cial basis, they began dis­cussing hav­ing a baby togeth­er and Mr Sha asked Ms Cham to stop work­ing at the mas­sage par­lour. He began vis­it­ing her at her home and stayed overnight on some occa­sions. He began pay­ing her $2,000 a month to help with her mort­gage and oth­er expens­es and he bought her a lounge and arm chair. 

A few months after that Mr Sha gave Ms Cham $10,000 and then a few months after that they signed a Finan­cial Agree­ment for de fac­to cou­ples, which pro­vid­ed sig­nif­i­cant finan­cial ben­e­fits for her.

These ben­e­fits includ­ed that:

1. He would give her half the val­ue of his home with­in two years of the birth of their child
2. He would pay her $400 per week
3. He would pay anoth­er $400 per week for the liv­ing costs of the child.

Mr Sha and Ms Cham com­menced IVF and very short­ly after that, Ms Cham became pregnant.

While Ms Cham was preg­nant, Mr Sha paid her car insur­ance and paid her anoth­er $8,000.

I don’t think any­one will be sur­prised to hear that about a month lat­er Mr Sha and his wife sep­a­rat­ed. As part of the prop­er­ty set­tle­ment between Mr and Mrs Sha, Mrs Sha received half the val­ue of their mat­ri­mo­ni­al home.

Approx­i­mate­ly 5 months after the birth of Ms Cham’s daugh­ter, the rela­tion­ship between Mr Sha and Ms Cham broke down. Short­ly after that, Mr Sha and Mrs Sha, finalised their divorced. 

After the break down of the rela­tion­ship between Ms Cham and Mr Sha, Ms Cham approached the Fam­i­ly Court to enforce the Agree­ment that they entered into dur­ing their rela­tion­ship. Mr Sha insist­ed that they were nev­er in a de fac­to rela­tion­ship. The tri­al judge dis­agreed and found that there was in fact a De Fac­to rela­tion­ship and between Ms Cham and Mr Sha – despite the fact that he had been mar­ried to Mrs Sha all along. 

Dur­ing the appeal the Court looked at ​‘com­mon res­i­dence’ and indeed, Mr Sha was liv­ing with his wife. Notwith­stand­ing, the Court deter­mined that it was enough for Mr Sha to have ​‘reg­u­lar and sig­nif­i­cant’ time at Ms Cham’s res­i­dence to sat­is­fy the cri­te­ri­on of com­mon residence. 

The Court next looked at the degree of com­mit­ment to a shared life and was sat­is­fied that:

1. The par­ties had entered into Agree­ment (which Ms Cham had relied upon)
2. Ms Cham gave up her work as a sex worker
3. Ms Cham and Mr Sha had been spend­ing time togeth­er for a con­sid­er­able peri­od of time.
4. The par­ties com­mit­ted to IVF and intend­ed to have care and sup­port of a child
5. Mr Sha had made pay­ments to sup­port Ms Cham
6. Mr Sha had pur­chased fur­ni­ture for Ms Cham’s home includ­ing an arm chair and a lounge

The Full Court con­clud­ed that in order to deter­mine whether a De Fac­to rela­tion­ship exists, the Court must look at the rela­tion­ship as a ​“whole” as ​“each ele­ment of a rela­tion­ship draws its colour and its sig­nif­i­cance from the oth­er ele­ments, some of which may point in one direc­tion and some in the other”.

This case is a cau­tion­ary tale as it con­firms that a per­son can simul­ta­ne­ous­ly be mar­ried to one per­son and in a De Fac­to rela­tion­ship with anoth­er – the con­se­quence of which can be dou­ble the prop­er­ty set­tle­ment. It also proves that ascer­tain­ing whether a De Fac­to rela­tion­ship exists is not always a straight for­ward process and accord­ing­ly, it is impor­tant to obtain legal advice to help you nav­i­gate your options.