I recently wrote about de facto relationships.
De facto couples who have separated can apply to the Federal Circuit and Family Court of Australia to resolve their financial matters.
This has been available since 1 March 2009.
This week I wanted to expand on the topic by looking at the case of Adesso v Payton that examined them in more detail.
You will recall that in order to establish the existence of a legal relationship you need to prove:
The period or total period of the relationship was at least two years; or,
There is a child of the relationship; or,
That the person bringing the Court application made substantial contributions to the property and it would result in a serious injustice if an order was not made
The case today examines the question of what is a “substantial contribution” that overrides the need to have been together for a minimum of two years?
Picture a scenario where a couple had purchased a house together and one party had invested $100,000.00 and the other nothing.
If the relationship split up after 18 months, the contribution by that person would clearly be regarded as “substantial” and allow that party to make a claim even though they had not
been together for two years.
It would be obvious that the person would suffer a serious injustice if not compensated.
The facts in Adesso v Payton were not quite as clean cut.
The couple were together for 14 months. During that time, he worked as a pilot and was the sole financial contributor to the relationship.
She stayed in the residence as homemaker and mother to her child from a previous relationship.
The couple were living in a heritage listed house that they planned to renovate.
The house was owned by his mother.
After the separation, she claimed that despite not lasting two years, the relationship should able to bring a claim for property settlement because her contributions were so significant
that she would suffer a serious injustice if she was prevented from doing so.
She claimed her contributions were:
Maintaining the gardens and supervising a gardener
Homemaking and cooking
Project managing the renovations
Assisting with his business
The court found that the applicant made contributions but that her contributions could not be described as ‘substantial’ in the sense of being over and above the ordinary.
She and her child had received considerable financial support from the respondent, including accommodation, private school fees and holidays.
In this context, her efforts could
not be viewed as out of the ordinary.
The court stated it was not persuaded that the applicant would suffer a serious injustice were she not permitted to pursue a claim for a property settlement given the short duration
of the relationship and the fact that her initial contributions were minimal.
It found that given the respondent provided all the financial support, a court would be unlikely to make any substantial property order in favour of the applicant.
Therefore, given the relationship continued for less than two years and there was no child of the relationship, the court was not persuaded that a claim for a property settlement could
be pursued.
The application was dismissed.
Paula Phelan is a Family Lawyer with Specialist Accreditation in this area from the Queensland Law Society.
She has been a lawyer for 26 years and is the director of Phelan Family Law, a Rockhampton legal firm specialising in Family Law only.
