DE FACTO WIFE ASSERTS HAVING A RELATIONSHIP WITH DE FACTO HUSBAND FROM 2005 TO 2018, DE FACTO HUSBAND DENIES SUCH CLAIM
Elden & Jacobs [2020] FCCA 2252 (13 August 2020)
This is a property proceeding where the wife is seeking for the court’s declaration that a de fact relationship exists between the parties from 2005 to 2018.
Facts:
The applicant-de facto wife commenced proceedings seeking a declaration that a de facto relationship existed between the parties from 2005 until18 January 2018. The respondent seeks a declaration that no de facto relationship existed between the parties after 2010.
The parties commenced a de facto relationship in 2006 when the applicant moved into the respondent’s home at Suburb Z on a permanent basis. The respondent moved out of the Suburb Z home in July 2009. The applicant and X lived in the Country N from June 2009 to late 2009.
The applicant communicated her intention to separate from the respondent when she moved out of the home in December 2008, applied for child support in April 2009 and travelled with the child X to the Country N in mid 2009. Prior to mid 2009 the respondent communicated his intention to separate to the applicant. The applicant contends they reconciled after this time and lived as de facto partners until 2018.
The respondent contends that the parties reached a property settlement in mid – 2010.
He contends that the parties were not in a de facto relationship after 2010. It was agreed that he would pay the applicant $200,000 and permit the applicant and children to live in his Suburb Z home with the respondent paying the mortgage. In addition he would continue to pay child support, for their child X, by private agreement of about $300 per week directly to the applicant.
The applicant agreed that she received the sum of $200,000 but denied it was provided for a by way of a property settlement though she accepted that she had instructed solicitors to draw up property consent orders in about March or April 2011.
Issue: Was there a de facto relationship between the parties from 2006 until 2018?
Law:
- Family Law Act 1975 SS.4AA, 39B, 90RD, 90SM
Analysis:
The respondent merely allowed the applicant and the children to live in his Suburb Z home and he paid the mortgage. The court does not accept this as anything other than him providing the applicant with additional assistance and to benefit the children. He was living and working in Perth at the time and in a relationship with another woman.
The applicant does not deny the receipt of $200,000 in funds from the respondent between 2011 and 2012. She instructed a solicitor to draw up consent property orders in similar terms but now denies the characterisation of those funds as a “property settlement”. She received a single parent’s pension from 2009 until 2012 for which she was entitled to receive.
Conclusion: It is declared that a de facto relationship existed between the parties between 2006 and July 2009 but no de facto relationship existed between the parties in 2010 and thereafter.
