De facto relationships of less than 2 years

Parties need to take care when commencing an application to court.  The critical question is whether the parties fall within the provisions of the family law legislation that will permit an order to be made.

A number of issues must exist to enable a judge to make an order in the case of de facto relationships, namely:

  • The de facto relationship must span a period of at least 2 years, or
  • Do the parties to the relationship have a child together

In the case of Beaumont & Schultes [2019] FCCA 1831 the parties had lived together in a de facto relationship for a period of less than the mandated 2 years.  There were no children of the relationship.

Does the court have the necessary jurisdiction to make a property order in relation to de facto relationship in these circumstances?  What were the issues to consider to ensure the court has jurisdiction to make the orders sought?

  • The precise commencement and termination dates of the relationship must be determined.
  • Should the submission of the applicant wife be accepted that the de facto relationship commenced when the parties commenced the sexual relationship as opposed to the actual living together in a domestic relationship. This submission was in fact rejected by the judge.
  • Did the wife seeking the property adjustment orders make substantial financial or non financial contributions to the acquisition, conservation or improvement of an asset.
  • If the answer to this last question is not in the affirmative then the court must consider whether, if no order for property adjustment is to be made, would this result in a serious injustice to the party seeking the order.

The trial judge found on the evidence as to the following:

  • The applicant made some financial contributions toward the purchase of food, entertainment, electricity but he did not consider this to be substantial.
  • The applicant organised for her family and friends to undertake some renovations on the first property the parties owned together but he did not consider this should be recognised as substantial particularly as the applicant’s adult children were paid for their work.
  • This work by the children could not be considered as an indirect financial contribution by the applicant wife.
  • The applicant worked on renovations to a second property at the same time as she looked after her children from a previous relationship and whilst studying. She placed a dollar value on her time of $90,000.  This work was considered to be substantive but the applicant’s submission was rejected as to the value.  It was not considered appropriate to place a dollar value on such work.

What was the outcome?  The trial judge considered that:

  • The de facto relationship did not span 2 years as required under the legislation, and
  • The applicant’s contributions to the family should be acknowledged but they were not considered sufficiently substantial to warrant an order being made in her favour, and
  • The applicant would not suffer a serious injustice if the court did not have the jurisdiction to alter the parties’ property interests, and
  • The applicant’s financial position at the commencement and at the termination of the relationship was similar, and
  • The added value of the renovations to the value of the property was small

The application was dismissed.

 

 

 

 

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