NOT LIVING TOGETHER BUT STILL DE FACTOS?

November 7, 2014

A de facto relationship doesn’t legally end simply because one partner has sexual relations with others or even if they get married to someone else according to a recent Family Court decision.

The case has reinforced that anyone thinking of separating from their de facto partner needs to express that intention to the other party for separation to have occurred.

In the case of Cadman & Hallett the issue was whether a de facto relationship existed and when separation occurred. Mr Cadman and Mr Hallett commenced living together in a de facto relationship in 1991. In 2000 Mr Cadman decided to become celibate and their sexual relationship ceased however they remained physically intimate. Also in 2000 Mr Hallett commenced studying overseas in the United States. Mr Hallett would be living in the United States for the large majority of the year and each time he returned to Australia he would live with Mr Cadman at their home for some months of the year. Mr Hallett had sexual relationships with others while overseas and there were instances where Mr Cadman would visit Mr Hallett in the United States. The parties were in regular contact with each other and from time to time Mr Cadman assisted Mr Hallett financially. In October 2010 Mr Cadman sent Mr Hallett an email to the effect that living together was ‘not right or an option’.

Mr Cadman’s case was that the parties separated in 2000, when Mr Hallett moved to the United States, however it was Mr Hallett’s position that they had not separated until 2010.

There was evidence produced that Mr Hallett intended to marry an American citizen in 2009 to obtain a ‘green card’. The Court found that in this case, this in itself would not constitute an intention to end the de facto relationship as a de facto relationship can exist despite one or both parties becoming or being married to another person. A person can also be involved in multiple de facto relationships at the one time.

The Court in this case found that a de facto relationship between Mr Hallett and Mr Cadman continued to exist until approximately 2010 when Mr Cadman expressed to Mr Hallett that Mr Hallett was no longer able to live with Mr Cadman at their home. It was that communication that the Court determined to be the expression by Mr Cadman to Mr Hallett that their relationship was over.

If you plan on separating from your partner, it is important that you communicate that intention clearly to your partner. Certain conduct such as sexual relations with others or marriage to another person is not in itself a communication to your former partner that the relationship is over.

The Court in the matter also found that a de facto relationship existed until 2010 despite the parties physically living apart for most of the time, Mr Hallett engaging in sexual activity with other persons, Mr Hallett’s alleged intention to marry another person, and no ongoing sexual relationship between Mr Hallett and Mr Cadman. The Courts look at a number of factors to determine whether a de facto relationship exists. Upon looking at all the circumstances of a particular relationship the Court may find that a de facto relationship exists between the parties.

It is also possible that a de facto relationship can exist despite two parties not physically living together in the same house full time. The Court needs to be satisfied that having regard to all the circumstances of their relationship, the parties have a relationship as a couple living together on a genuine domestic basis. This is because the Court accepts that not all relationships are “traditional” in the sense that genuine couples may not choose or be able to physically live together full time or choose to be in a sexually and emotionally exclusive relationship.

Some circumstances that the Courts consider in assessing whether a de facto relationship exists include:

  • (a) the duration of the relationship;
  • (b) the nature and extent of their common residence;
  • (c) whether a sexual relationship exists;
  • (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
  • (e) the ownership, use and acquisition of their property;
  • (f) the degree of mutual commitment to a shared life;
  • (g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
  • (h) the care and support of children;
  • (i) the reputation and public aspects of the relationship.

If you are thinking of separating from your partner or not sure if you have already ‘separated’ from your partner be clear on where you stand. Contact Websters Lawyers for an initial free consultation to discuss you case with a specialist Family Lawyer in Adelaide or the North East.

Cadman & Hallett [2014] FamCAFC 142