The law in Australia clearly outlines the criteria of a de facto relationship. Section 4AA(1) of the Family Law Act, 1975 says that two people are in a de facto relationship if they “have a relationship as a couple living together on a genuine domestic basis”. Section 4AA(2) helps the courts determine if indeed a de facto relationship exists by allowing the judge to consider a number of factors, including the duration of the relationship, whether a sexual relationship exists and the degree of mutual commitment to a shared life.
In a recent court case, Kale & Karmel, the Family court was asked to determine exactly when the relationship began and ended, in order to divide the joint property fairly. In this case, the applicant, Kale, was a 58 year old man with two grown children from a previous marriage. He received a PhD in 1997. Until about 2005, he was also caring for his two children on a more less equal basis with his ex-wife. The respondent, Karmel, completed a law degree in 2000, worked for several years in business and in law and in April 2005 opened her own law practice. There were various questions of property – a shared home, superannuation, cars – but the larger disagreement centred around when the de facto relationship between the applicant and the respondent started and when it ended.
Kale argued that the relationship started in mid-2002 and ended in October 2009, after their physical separation. Karmel, on the other hand, argued that the relationship commenced four years earlier in 1998 and ended only in January 2010. The court was forced to look at a number of criteria in order to determine just how long the relationship actually did last.
The court reference earlier cases, concluding that for the purposes of property issues, it must be shown that the parties lives have merged to the point that for all intents and purposes, they are living together as a married couple. Based on this understanding, the magistrate in Kale & Karmel found that the de facto relationship commenced in late 2001.
The magistrate considered a number of factors which indicate that the de facto relationship did not begin until late 2001. First, although the relationship started in 1998, the parties maintained separate homes until March 2002. Kale lived in a home he had purchased some years earlier and Karmel continued to rent elsewhere.
Second, while Kale resided in this original home, he maintained equal care of his children. The magistrate accepted that this meant that a central part of Kale’s life, mainly his children, did not yet become a part of his relationship with Karmel.
Third, the couple kept separate finances until March 2002, maintaining financial independence. Proof of this independence was a loan which Kale gave to Karmel and which was paid back shortly after it was given. The magistrate found this act “contrary to the notion of financial interdependence”.
Fourth, throughout 2000, Karmel pursued a job opportunity which would have required a move to Canberra. Since Kale’s children remained in Brisbane, there was no question of his relocating. The respondent also told the applicant that she hoped to find an overseas posting. The magistrate held that Karmel’s decision to consider and pursue such a professional move ran “contrary to the existence of a de facto relationship”.
Taken together, these factors indicate that the parties were indeed in a relationship, but not a de facto one, since their finances remained separate, they each lived in a different home and they had no other mutual assets.
The court held that the de facto relationship actually did begin in late 2001 because at that time the couple decided that Kale would help Karmel financially so she could acquire a home large enough to accommodate him and his children. For the magistrate, this was a mutual decision to jointly acquire property, indicating a real merger of their lives. Significantly, the magistrate did not consider when the property was actually acquired – early 2002 – but when the parties made the decision to buy the property, late 2001.
The termination of the relationship was simpler for the magistrate – it took place when the respondent left the joint home in October 2009. In total, the magistrate found that Kale and Karmel had maintained a de facto relationship for a period of some eight years, from late 2001 through late 2009.
