Can couples live apart but still be considered de facto partners?

A 2014 case in the Family Court of Australia has determined the need for a de facto couple to clearly communicate with one another when their relationship ends.

Cadman & Hallett [2014] FamCAFC 142 (11 August 2014) involved a gay couple who began a relationship in 1991 and for the next 19 years, had a close relationship, albeit not exclusive and not always living under the same roof.

The issue to be determined by the trial judge, and then the Full Court on appeal was at what point the relationship ended, as the two parties disputed by nearly 10 years the date upon which they ceased to “reside together on a genuine domestic basis”.

Mr Cadman sought to dismiss the case, arguing that the relationship ended in January 2000, prior to the time that the Family Courts accrued jurisdiction to hear de facto cases. Mr Hallett claimed that the de facto relationship ended in October 2010.

It was never in question that the couple were living in a de facto relationship from 1991 until 2000, in a house owned by Mr Cadman, who was 70 years old at trial and suffering from dementia. Mr Hallett, who was 47 years old at the trial, had received financial support throughout the relationship.

The interesting aspect of this case is that Mr Hallett had left Australia to study art in the USA for months at a time, including a two-year period where he did not return to Australia and was actively involved in sexual relationships with other people. The couple’s sexual relationship had ended in 2000. The complicating factor was that Mr Cadman continued to fund Mr Hallet’s study expenses when he was overseas and Mr Hallett came back to stay in Mr Cadman’s home when he returned to Australia for varying periods of time.

As the parties had continued to communicate with each other during the period of Mr Hallett’s long absences from Australia, however, the trial judge held that neither party had effectively communicated the intention to separate until Mr Cadman amended his will to significantly reduce the bequest to Mr Hallet in 2010. The trial judge found that the intention to separate had been effectively communicated in 2010.

As the parties had continued to communicate with each other during the period of Mr Hallett’s long absences from Australia, the trial judge held that neither party had effectively communicated the intention to separate until Mr Cadman amended his will to significantly reduce the bequest to Mr Hallet in 2010

The Full Court on appeal upheld the trial judge’s decision, stressing the importance of one party effectively communicating an intention to end a relationship. Despite living in different countries and having no sexual relationship, Mr Hallett was successful in proving a de facto relationship existed within the dates providing jurisdiction to the Family Court. The dates also fell inside the two-year limitation period to file an Application after separation.

Streeterlaw Family Law Specialist Simone Green said the broad interpretation of ‘living together on a genuine domestic basis’ in this case should raise concerns for those who do not necessarily consider themselves to be ‘living together’ in the ordinary understanding of the term.

“It is important for couples to be clear with one another about their intentions within their relationships and preferably prepare for the future by entering into financial agreements which provide for the possible separation from the relationship,” she said. “For those in situations where the relationship resumes from time to time, it is extremely important to communicate the end of the relationship in writing.”

In this case, it was necessary to prove that a de facto relationship existed within the dates claimed by Mr Hallett in order for him to proceed with seeking an adjustment to the property settlement.

The Family Law Act 1975 (‘the Act’) has no jurisdiction to make orders in adjusting property interests of unmarried couples unless they come within the definition of a de facto relationship set out in Section 4AA of the Act. Essentially, a couple is considered a ‘de facto’ couple if they are not legally married to one another, not related by family and according to a set of other criteria (not all of which need to be present) the Court is satisfied that they have a relationship as a couple living together on a genuine domestic basis. This definition now covers couples in same sex relationships, even when one of the parties is legally married to someone else or if the party has multiple relationships, all of which may be classified as ‘de facto’.

For a more detailed definition of a de facto relationship, read the Streeterlaw article here.

For advice on your Family Law matter, please contact Ms Simone Green at Streeterlaw on (02) 1300 293 957 or email advice@streeterlaw.com.au.