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Date of separation for de factos is significant

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It has been eighteen months since legislation was passed to the Family Law Act concerning de facto couples.  The changes to the Family Law Act are significant in that if de facto couples separated after 1 March 2009, Courts exercising power under the Act can adjust property interests of de facto partners in the same way that they would for married couples.

A majority of cases take approximately twelve to eighteen months to reach the final hearing stage within the Family Court system.  Accordingly, there has been little case law to ascertain the effect of the changes. It seems from some of the decisions that have been made, that fundamental issues such as whether a defacto relationship existed or when separation had occurred have been the primary issues for consideration by the Courts.

In the matter of Aitken v Deakin the Federal Magistrates’ Court dealt with the issue of the date of separation between the separating parties.  In this matter, the Applicant spouse husband alleged that he and Ms Deakin were in a de facto relationship from 1991 until 9 April 2009.  Ms Deakin argued that the relationship between she and Mr Aitken was not a de facto relationship within the meaning of the Act and further if is was, then the relationship ended in January 2009.  Accordingly, the Court did not have the jurisdiction to deal with the matter.  Ms Deakin stated that she had informed Mr Aitken of her intention to separate in early 2009 and that they were indeed separated under the one roof from January 2009.  

The Court indicated that there were three elements of a separation in a legal sense. They are:

  • The development of an intention to separate.  That intention need not be mutual
  • The communication of the intention to the other party
  • Some form of action upon the determination to separate

The Court found in this matter that Ms Deakin determined to separate in January 2009 and communicated her intention at the time in unambiguous and unconditional terms to the Applicant.  As such, the Court found that it did not have jurisdiction to deal with the matter.  

In the matter of Vine v Carey the Applicant spouse wife argued that separation occurred after 1 March 2009.  The Respondent spouse husband denied this arguing that the relationship had collapsed before 1 March 2009.  The Court also determined that it was the Applicant spouse wife’s responsibility to prove that the relationship had indeed continued.  

In this case, the Respondent spouse husband admitted that his partner had moved into a separate room however conceded that neither had declared that the relationship had indeed ended.  The couple also maintained the sharing of household tasks, financial arrangements and also holidayed together.  At no stage did the Respondent spouse husband inform anybody that the relationship was over.  

In this case, the Court held that the relationship had not broken down prior to 1 March 2009.

It is not surprising that in circumstances where the law has significantly departed from the previous legislation governing separating couples that fundamental and preliminary issues such as separation and the status of relationships themselves has become a disputed area.  

Contact one of our family lawyers for a confidential discussion if you have any questions arising from these two cases or indeed any other family law matter.

Author:  Natalia Todorovic

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