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Does de facto count in court?

The generic definition of de facto means “existing or holding a specified position in fact but not necessarily by legal right”. A de facto relationship, according to the Australian family law act, involves two people who are not legally married or related to each other living together as a couple on a genuine domestic basis (irrespective of gender).

The family law act was amended just over 10 years ago in order to include de facto relationships. However, the de facto provisions are separate and distinct from matrimonial matters. A few cases since then appear to celebrate the union of marriage and downplay the importance of a de facto relationship in light of its informality.

Which may explain why the trial judge in a recent case found that a mother who had left the family home with the children a number of times due to family violence had essentially ended the relationship each time she left and was therefore not entitled to full recognition of her parenting and homemaking contributions to the relationship.

Fortunately, the mother appealed, and in October 2019 the full family court set aside the judgment.

In Whiton & Dagne [2019] FamCAFC 192 at [8] the full court accepted the mother’s contention that “the trial judge undervalued her … contributions, as a consequence of wrongly distinguishing between contributions made in a de facto relationship as compared with those made in a marriage”.

The full court criticised (at [20]) the trial judge’s failure to consider the mother’s continuing and significant homemaking and parenting contributions and her financial support of the children during periods when the parties were separated, particularly given the separations were a consequence of the father’s domestic violence.

The full court noted (at [24]-[25]) “we are unaware of any authority to support the notion of the trial judge that if the [mother’s] contributions had been made in a marriage they would somehow carry more weight in the assessment of contributions … The approach adopted by the trial judge was wrong in law”.

It’s a cause for celebration when institutions like the family court recognise the changing face of modern families and afford the same protections given to the more traditionally accepted family model. That the court understood the challenges of a family violence survivor and supported her struggle is even more heartening.

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