Unlike marriages, it is often very difficult to determine precisely if and when a de facto relationship started and when it ended. The question of whether a de facto relationship existed at all is often a contentious point between couples.
Unlike a marriage, where it is easy to prove the start of the marriage (issuing the Marriage Certificate after the ceremony) and the formal end of the marriage (issuing of Divorce Certificate), it is not quite clear cut when de facto relationships exist or end.
In a recent decision in the Family Court of Australia, the Full Court had cause to examine various different factors that were relevant in a particular case as to when a particular de facto relationship had ended.
The Court was met with competing evidence by both couples as to when the relationship had actually ended. The decision is important from the point of view that it highlights the fact that there is usually no one particular factor that alone ultimately determines if a de facto relationship exists or when it ends. Often, in cases, it is the weight attached to various different factors in the circumstances of each particular case that may influence a Court’s findings.
Some of the examples of issues highlighted by the Court in this case that showed a relationship still existed between the relevant couple were as follows:-
- The existence of taxation records disclosing one partner’s address as the other one’s address;
- Admissions made by a party about regularly sleeping together;
- Opening and operating a joint bank account together;
- Bank records demonstrating one party’s financial contributions to the purchase of real estate;
- Bank records addressed to both parties at the same address at one particular time;
- Bank records evidencing use of sale proceeds from one property to reduce the mortgage debt on another at one particular point in time;
- Payments of one party’s lump-sum payment on termination of employment into a joint account of the parties;
- A letter written to the Child Support Agency confirming the parties ongoing relationship at a particular time;
- The maintenance of the joint bank account which one party’s salary was paid even when the parties physically lived apart;
- Telephone records demonstrating the parties stayed in daily telephone contact even when they were physically living apart;
- One party’s withdrawal of money with the other one’s consent from a line of credit to buy a car; and
- Credit card statements showing one party had a supplementary card on the other party’s account at a certain time.
A Court can determine that one or other of the above factors in the particular circumstances of the case can have more importance and weight than another; there is no hard and fast rule.
There have even been cases where one party has effectively lied to a government body (for example social security or the Child Support Agency) saying that a relationship had ended. That party’s evidence in Court (when the couple actually separate) may be different and that party may assert that the relationship had not in fact ended as they represented to the government body.
The Courts job is to determine the truth of when a relationship existed and when it ends. A party’s prior representation or evidence about what they have said or done in the past can be very relevant but by itself may not be conclusive about any finding a Court may make.
We often have clients who believe they have found a “smoking gun” that may prove the existence of a de facto relationship. While letters or cards signed by the other party stating that a relationship exists may be very helpful for that party’s case they are not necessarily determinative of an outcome.
A good family lawyer will understand this and will realise that there are many questions to be asking and many documents to be discovered and looked at to ascertain whether a relationship did exist or not.
A good family lawyer will properly gather that evidence and present it in a detailed and particular fashion so that the Court is aware of all relevant circumstances that may support or not support the existence of a relationship may be.
If you need legal advice regarding the break down of your de facto relationship, contact one of our Brisbane family lawyers who will be able to guide you towards the best solution for your matter.
