Property – de facto thresholds

In Mayson & Wellard [2021] FamCAFC 115 (14 July 2021), the Full Court (Strickland, Ryan & Kent JJ) allowed a de facto wife’s appeal against a declaration that a de facto relationship existed for more than two years.

She argued that while the parties lived under one roof until November 2015, separation occurred in late 2011 or early 2012.

The Full Court said (from [30]):

“ … [T]he onus was … on the [de facto husband] … to establish that there was a de facto relationship until 8 November 2015. … [H]er Honour … require[d] the [de facto wife] … to establish that there was no de facto relationship after late 2011/early 2012 … This is a clear error (…)

[33] … Section 4AA(1) of the Act mandates that regard must be had to all the circumstances of the relationship in determining whether it is one of a couple living together on a genuine domestic basis. (…)

[34] … [G]iven that her Honour accepted the evidence of the [de facto wife] … as to the circumstances in this case and in particular having regard to the fact that after mid-2011 any sexual activity was non‑consensual … it is not explained by her Honour … why those circumstances could only have ‘limited relevance’ in this case; plainly they … could only have led to a finding … that there was not a genuine domestic relationship … after late 2011/early 2012. (…)

As to separation, the Full Court said (from [40]):

“The issue is not whether the parties ‘separated’, but whether the de facto relationship broke down or ceased. (…)

[42] There is no mention in the Act … of there needing to be an intention formed to either enter into a de facto relationship, or … to end it. (…)

[45] … [T]he comparison of the circumstances as they existed prior to late 2011/early 2012 with the circumstances that existed thereafter should have led her Honour to find that the de facto relationship ceased at that time.”

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are Accredited Specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

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