· 2021-08-11T17:04:38+0000 · 773 posts

Post Divorce Defacto Relationship? Wife Opposes Husbands Property Proceedings saying there was no defacto relationship.

Jiao & Dong [2021] FCCA 1598 (14 July 2021)

The parties who got married in 2006 eventually separated. The Husband made an application for leave to commence property proceedings. The Wife opposed the Husband's application. The parties are in dispute over whether or not there existed a de facto relationship between them. The Court was guided by the meaning of a de facto relationship as provided in section 4AA of the Family Law Act 1975 (Cth) in determining its ruling.

Facts:

The parties got married in 2006 when the Wife still lived in China. At the time of the marriage, the Husband owned an investment property at Suburb F, a car and about $30,000 cash. When the Wife arrived in Sydney from China in 2007, the parties’ lived in a rented unit in Suburb G. In 2008, the Husband sold the Suburb F unit and realised $46,000.

He deposited that sum into the parties’ joint CBA account. After the divorce, the parties’ continued their relationship as Husband and Wife, despite not living in the same residence between about October 2013 and January 2015. The parties remained living together until about October 2013 when the Wife shared rented premises in Suburb G with one Mr H. The Husband made an application for a declaration that a de facto relationship existed between the parties during the period from about 2012 to December 2018.

In the alternative, the Husband made an application for leave to commence property proceedings. The Wife opposed the Husband’s above proposed declaration and application for leave in the alternative.

Issues:

I. Whether or not the parties were in a de facto relationship.

II. Whether or not the husband's application should be granted.

Applicable law:

Family Law Act 1975 (Cth), ss 4AA, 44, 79, 90RD - provides that a person is in a de facto relationship with another person if the persons are not legally married to each other and the persons are not related by family. Having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Crick & Bennett [2018] FamCAFC 68 - provided for the proper construction to be applied to section 4AA of the Act.

Marriage of Jacenko [1986] FamCA 25; (1986) 11 Fam LR 341 - where the Full Court stated that the general principle is that the Court proceeds on the evidence of the Applicant, which should be accepted unless it is inherently unbelievable or contradictory.

Sharp v Sharp [2011] FamCAFC 150; (2011) 50 Fam LR 567 - the Full Court has indicated that hardship may be found when the Applicant has a prima facie claim worth pursuing or one which has a real probability of success which would otherwise be lost.

In the Marriage of Althaus (1979) 8 Fam LR 169 - provided that as to delay explanation, the Applicant’s explanation for the delay, or the lack of it, is no more than one factor which weight depends on all the circumstances.

Analysis:

In resolving the issue of the existence of the parties’ de facto relationship, the Court is required to have regard to all the circumstances of the parties’ relationship and determine whether they had a relationship as a couple living together on a genuine domestic basis. While the Wife’s allegation is that the parties separated on 21 December 2010, the entries in the Husband’s diary are consistent with the Husband’s contention that there was no separation between the parties from 21 December 2010. It is consistent with the contention that they continued their relationship as Husband and Wife up until late December 2018.

The Husband did not commence property proceedings under section 79 of the Act in time because he regarded the parties’ Husband-and-Wife relationship as subsisting after their divorce in 2012 and up to December 2018. Granting leave to the Husband to commence property proceedings under section 79 of the Act out of time would not prejudice or impose hardship on the Wife.

Conclusion:

The Court declared that the parties were in a de facto relationship, within the meaning of section 4AA of the Act, from about 2012 to December 2018. The parties are directed to attend a Conciliation Conference before a Registrar of this Court on a date to be advised. The parties are directed to provide updating financial disclosure to each other.

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