Were they in a de facto relationship? Should the financial agreement stand? Which case won?

Monday, 5 March, 2018

by Timothy Losco

The Facts

Couple commence relationship

The parties met in late 2011 at a massage parlour, where the woman worked. The man was married at the time.

In February 2012, the parties had dinner together and commenced a sexual relationship. In March 2012, the parties discussed having a child together and the woman stopped working at the massage parlour, at the man’s request. The man also began to spend overnight time at the woman’s house, although the parties disagreed as to how often this occurred.

In April 2012 the man began transferring $2,000 per month to the woman, along with two additional transfers of $10,000 in June 2012 and July 2012.

Parties enter into financial agreement and commence IVF

In August 2012, the parties signed a financial agreement as a de facto couple pursuant to the Family Law Act. The financial agreement contained provisions for the man to support the woman and their child financially if they ever separated.

The parties then began IVF treatment and the woman became pregnant in September 2012. The man separated from his wife in October 2012. The parties’ child was born in mid-2013.

The man continued to make payments for the woman, including a transfer to her of $8,000 and the payment of her car insurance in September 2013. However, by December 2013 the relationship had deteriorated and the parties separated.

Woman seeks to rely on financial agreement after separation

Before the separation, the man indicated that he would not comply with his obligations under the financial agreement. A dispute arose, and the woman ultimately started court proceedings to enforce the terms of the financial agreement.

The primary question for the court to determine was whether a de facto relationship did, in fact, exist at the time the financial agreement was executed by the parties. If a de facto relationship did not exist at that time, then the parties’ relationship would not fall under the Family Law Act and the financial agreement would be invalid.

A: THE CASE FOR THE WOMAN

While we were together, my ex repeatedly assured me that he would support me and our child financially. I accepted these assurances.
Our commitment to our shared life is demonstrated by the fact that I gave up working in the massage parlour and embarked on the IVF program to conceive our child – something we both wanted.
While we were together, we shared a residence – my home – which my ex used as he wished, including regularly staying overnight.
I have correspondence from my ex in which he refers to me as “my wife” and to himself as “your husband”.
My ex’s commitment to our shared life is proven by the fact that he entered into the financial agreement.
All of these factors indicate that we were in a de facto relationship at the time we entered into the financial agreement, and therefore the agreement should be upheld.

B: THE CASE FOR THE MAN

Our relationship lacked a mutual intention to be a couple living together in a genuine domestic relationship. My ex wanted me to divorce my wife, whereas I did not want to do that.
We didn’t have a shared residence and I never considered myself to be “living” with my ex – I only ever visited her or stayed with her.
I did not understand the nature of the financial agreement at the time I signed it. I thought the agreement was only to do with having a baby and that my ex would be angry with me if I didn’t sign it.
I was married to another woman at all relevant times and there was no de facto relationship between me and this woman. The financial agreement should be declared invalid and I should not have to abide by its terms.