A recent decision handed down by the Federal Circuit Court examined the question of whether the court ought to make property orders after a de facto relationship of less than two years duration. The 2019 decision of Adesso v Payton concerned a 14-month relationship between a pilot and a woman who was unemployed while caring for a child from a previous relationship. The applicant sought financial orders in her favour based on her non-financial contributions to the relationship. The respondent opposed the application, arguing that the relationship was not a de facto relationship within the meaning of the Family Law Act.
Section 4AA of the Family Law Act defines what is a de facto relationship. It states that a de facto relationship exists where two people who are not legally married have a relationship together as a couple living together on a genuine domestic basis.
The circumstances to be taken into account in determining whether a de facto relationship exists include the duration of the relationship, the nature and extent of the couple’s common residence, whether a sexual relationship exists, the degree of financial interdependence or financial supports between the parties, the ownership or acquisition of a property, whether the relationship is registered, the care and support of children and the public aspects of the relationship.
Section 90SM of the Family Law Act provides that the court may make such orders as it considers appropriate in property settlement matters, including altering the interests of the parties. However, Section 90SB provides that a court may only make property orders in relation to a de facto relationship if:
- The duration of the relationship is at least two years;
- There is a child of the relationship; or
- The applicant made substantial contributions and a failure to make an order would result in serious injustice.
The facts of Adesso v Payton
The couple in Adesso v Payton lived in a heritage-listed property owned by the man’s mother. The man worked nine days per month as a pilot and ran his own business. The couple planned to renovate the property and the woman argued that her contributions to the relationship were non-financial, consisting of a ‘passion for gardening’, doing the maintenance and improvements of the gardens as well as supervising a professional gardener, homemaking, cooking and project management of renovations. The woman also claimed she assisted the man with his business.
The applicant argued that that the relationship should be treated as a de facto relationship as her contributions were significant and that she would suffer a serious injustice should she not be allowed to argue her entitlement to property orders under Section 90SM of the Family Law Act.
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 de facto relationship had existed. The application was dismissed.
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