What constitutes a de facto relationship?

16/07/2014

Recent cases have given further guidelines as to what living arrangements must exist in order to persuade a Court that a de facto relationship exists.

In Taisha and Deng the Family Court document the evidence necessary to establish that two people were living together as de facto partners. There must be evidence of a domestic relationship. A domestic relationship must be one in which there are activities of running a household or share household.

The case has important consequences in circumstances where one party may be asserting a domestic relationship and the other denying that there was a domestic relationship. This will effect whether or not a successful claim for properly division can be made. under the Family Law Act.

The recent High Court decision in the matter of Stanford and Stanford has important implications in relation to how the Family Court will approach the division of property between husband and wife in circumstances where one party does not have the mental capacity to make their own decisions.

In this case the husband and wife had previously been married and have children from their first marriage. The husband and wife had made Wills leaving their respective estates to the children of their first marriages.

During the course of the marriage, the wife developed dementia and arrangements were made for her accommodation in care. The wife’s children commenced proceedings for property division on behalf of their mother. The Federal Magistrates Court of Western Australia at first instance made an Order for property division between the husband and wife (ordering the husband to pay to the wife a significant amount) that the husband would need to sell the house in which he had been living.

The High Court found that the power to make an order for property settlement cannot be exercised in an unprincipled fashion. The Court said that the question of ownership of a property are to be decided according to the same scheme of legal titles and equal principle rules as governed the rights of any due persons and not spouses. This is subject to the Family Law Act.

A court will not always make an order for property division. Evidence must be available to allow the Court to make a decision. Our solicitors can advise as to the adequacy of evidence and what is required to be established.

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