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    Married vs de facto: does it matter?

    Dec 4, 2019 2:34:36 PM

    On 1 March 2009, Part VIIIAB was inserted into the Family Law Act 1975 (Cth) (‘the Act’) which provided for Australian de facto couples to have their financial matters dealt with upon the breakdown of their relationship under the Australian family law system. The main effect of the amendments was to the mirror Part VIII of the Act, which covers financial matters between married couples.

    These ground-breaking amendments means that de facto and married couples are in the same position when seeking a property settlement adjustment following the breakdown of their relationship. This was recently highlighted by the Full Court in the case of Whiton & Dagne [2019] FamCAFC 192 (31 October 2019) (‘Whiton & Dagne’).

    In Whiton & Dagne, the parties had been in a de facto relationship for 18 years. They had two children, who were aged 19 and 18 years old respectively by the time of the trial. It was not disputed between the parties that the Wife was the predominant homemaker and carer of the children throughout the relationship. This role endured throughout the numerous periods of separation of the parties in the course of their relationship as a result of domestic violence perpetrated by the Husband.

    At trial, the judge held that within the 18-year period of cohabitation from July 1998 until final separation in October 2016, the parties separated around 20 times and cohabited in total for approximately 12.5 years. Notwithstanding that the Wife remained the primary carer for the children during those periods of separation, the trial judge equated each separation with the ‘end’ of the de facto relationship for the purpose of contributions. Ultimately, the trial judge divided the property 75/25 percent in the Husband’s favour.

    The Wife appealed on the basis that the trial judge discriminated “between the worth of the Wife’s contributions as a homemaker and parent made in a de facto relationship, as compared with their worth had the parties been married … [which had] the effect of undervaluing her contributions”. The Full Court found in favour of the Wife that “the trial judge discounted the wife’s contributions by confining their impact only to those periods when the parties were living together”. The trial judge failed to consider that the terms of s 90SM (specifying what the Court must consider when determining what property settlement order should be made for de facto couples) are identical to the terms of s 79 (with respect to marriages).

    The appeal was successful, and the matter was remitted for determination by a judge other than the trial judge.

    Whiton & Dagne is a stark reminder that there is no discrepancy in the assessment of contributions between de facto and married couples. Both are treated the same. Even though a relationship may be punctured by periods of temporary separation, the contributions made during these periods of separation do not diminish in their weight or significance.

    If you are in a de facto relationship and would like advice regarding your property settlement entitlements, our experienced family law team at Frank Law is available to assist you. We offer a Free First Conference where we can listen to your story, advise you as to your entitlements, and adopt a strategy to obtain a just and equitable property settlement for you.

    If you have further questions, please contact Matthew Sibley at msibley@franklaw.com.au.

    This is not legal advice. 

    Photo by Sweet Ice Cream Photography on Unsplash.

    Matthew Sibley

    Written by Matthew Sibley