Which case won?

casea
The case for the woman
  • While we were together, my ex repeatedly assured me that he would support me and our child financially. I accepted these assurances.
  • Our commitment to our shared life is demonstrated by the fact that I gave up working in the massage parlour and embarked on the IVF program to conceive our child – something we both wanted.
  • While we were together, we shared a residence – my home – which my ex used as he wished, including regularly staying overnight.
  • I have correspondence from my ex in which he refers to me as “my wife” and to himself as “your husband”.
  • My ex’s commitment to our shared life is proven by the fact that he entered into the financial agreement.
  • All of these factors indicate that we were in a de facto relationship at the time we entered into the financial agreement, and therefore the agreement should be upheld.
caseb
The case for the man
  • Our relationship lacked a mutual intention to be a couple living together in a genuine domestic relationship. My ex wanted me to divorce my wife, whereas I did not want to do that.
  • We didn’t have a shared residence and I never considered myself to be “living” with my ex – I only ever visited her or stayed with her.
  • I did not understand the nature of the financial agreement at the time I signed it. I thought the agreement was only to do with having a baby and that my ex would be angry with me if I didn’t sign it.
  • I was married to another woman at all relevant times and there was no de facto relationship between me and this woman. The financial agreement should be declared invalid and I should not have to abide by its terms.

So, which case won?

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Case A Case B

Case A won. You were right!

How people voted
a78%
b22%

Expert commentary on the court's decision

“While the legislation certainly provides a comprehensive guide to circumstances that should be considered when trying to establish the existence of a de facto relationship, it is not a checklist that you can simply work through. You must also take a step back and consider all aspects of a relationship holistically.”
Family Court finds that de facto relationship existed

The matter was first determined by the Family Court, in Cham & Sha [2015] FamCA 355 with the judge at first instance applying the legal definition of a de facto relationship to the parties’ circumstances and ultimately finding that a de facto relationship did exist from mid-March 2012 until September 2013. As the financial agreement was executed on 3 August 2012, it was therefore valid.

The man immediately appealed that decision.

In the case Sha & Cham [2017] FamCAFC 161, the Full Court of the Family Court dismissed the appeal, finding that the first judge was right to conclude that a de facto relationship did exist at the time the financial agreement was executed.

Relevant law for determining the existence of a de facto relationship

Section 4AA of the Family Law Act states that two people are in a de facto relationship if they are not legally married to each other, they are not related by family, and, having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

To determine whether two people have a relationship as a couple, a court will examine a range of circumstances listed in paragraph (2)(a)-(i) of section 4AA:

  • the duration of the relationship
  • the nature and extent of their common residence
  • whether a sexual relationship exists
  • the degree of financial dependence or interdependence and any arrangements for financial support between them
  • the ownership, use and acquisition of their property
  • the degree of mutual commitment to a shared life
  • whether the relationship is or was registered under a prescribed law of a state or territory as a prescribed kind of relationship
  • the care and support of children
  • the reputation and public aspects of the relationship

Importantly, section 4AA also explicitly states that a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

Appeal court confirms correctness of initial decision

Of particular interest in this case are the comments that the appeal court made about how to assess whether people are in a de facto relationship.

The appeal court judges found that the first judge correctly applied section 4AA of the Family Law Act when considering the circumstances of the parties’ relationship. Part of that process is to work through section 4AA and consider whether the parties’ circumstances fit within each sub-paragraph.

Importance of taking a holistic view of the relationship

Even though each sub-paragraph was considered in detail by both the first judge and the appeal court, the appeal court confirmed that the decision of whether a de facto relationship existed should be based on a holistic view of the relationship, including an overall assessment of the circumstances of the relationship, rather than a specific evaluation and weighing up of the section 4AA factors in favour for or against a finding that a de facto relationship existed.

The appeal court ultimately concluded that the first judge had correctly adopted this approach, and therefore there was no error. The appeal court was also quick to make a finding that the first judge had provided adequate reasons.

Therefore, while section 4AA certainly provides a comprehensive guide to circumstances that should be considered when trying to establish the existence of a de facto relationship, it is not a checklist that you can simply work through. You must also take a step back and consider all aspects of a relationship holistically.

Circumstances of relationships can vary significantly

While this may seem like a somewhat informal and casual approach for the court to take, it is important to bear in mind that as people go about their lives, the circumstances of relationships can vary significantly, and therefore a rigid approach or “test” may produce inequitable outcomes.

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