Sunday 28 September 2014

"Living apart together"

Traditionally people have been categorised as 'married' or 'single'. Then sometime last century along came the 'de facto' concept.

This category is the hardest to define and the law, being the law, has tried very hard to put a definition on it.

In the family law context this is particularly relevant to property division following the breakdown of the relationship. The current law provides for de facto couples to have their financial relationship dealt with under the Family Law Act - using considerations very similar to those that apply to married couples.

Deciding if a relationship is a de facto relationship is fairly easy to do where a couple are cohabitating together in a long-term committed relationship and they have intermingled their financial lives.

But there is an increasing emergence of a new type of relationship - those who are 'living apart together'.

Generally speaking 'living apart together' relationships involve a couple who are in a relationship but maintain separate residences. This can be due to particular circumstances, such as working interstate of internationally. But it can also be due to an ongoing commitment to children or grandchildren from a prior relationship - sometimes where their may be concerns to protect wealth or assets from this newer relationship.

There can be an assumption by participants that living together apart will shield wealth or assets held at the beginning of the relationship from the other partner should the relationship breakdown. However there is an increasing amount of litigation which may give pause.

Firstly, the Court has, in several matters, stated that the parties own view of the nature of the relationship is not determinative. For example, in Sinclair & Whittaker (2013) the Full Court of the Family Court said "the ultimate decision as to whether there is a de facto relationship at any given time is a matter for the court and not a matter for the parties. Although their perception of the nature of the relationship is a relevant matter it is not determinative."

Secondly, the Court has directly addressed the issue of 'living apart together'.

In Jonah & White [2011] Judge Murphy said "In my opinion, the key to that definition is the manifestation of a relationship where the parties have so merged their lives that they were, for all practical purposes, 'living together' as a couple on a genuine domestic basis." Justice Murphy went on to say "The issue, as it seems to me, is the nature of the union rather than how it manifests itself in quantities of joint time."

It seems that the Court will increasingly find itself weighing up the rights of individuals to determine and define their obligations to and for other people against the rights of individuals to be compensation for their investment in a relationship. And as the Court has pointed out searching for a relationship of shared purpose and commitment is a difficult task for "an independent third person ... called upon to make an authoritative determination of events and decide what actually occurred when he or she was not present during the occurrence of those events" Justice Harman in Benedict & Peake [2014]

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