It's The Vibe

One of the more difficult tasks that we confront is deciding when a couple is in a de facto relationship. There is no difficulty in proving, in almost every case, whether a couple is married or not.  There is a marriage certificate.  While de facto relationships can be registered, very few are.  The Family Law Act sets out what the criteria are.  The overriding principle is whether, having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Yet there is considerable uncertainty about "living together" and about what a "genuine domestic basis" means. 

The court is also required to look at a number of particular factors, among them how long the relationship lasted, whether they had a common residence, whether they had a sexual relationship, whether they provided financial support for each other, whether they owned or used property together, whether they had a mutual commitment to a shared life, whether they cared for and supported children, and how the rest of the world saw them. By that last criterion the court is supposed to look at such things as how they were known by their family and friends, as partners or as companions or as flatmates, or whether indeed their relationship was entirely secret, as some are.

This issue came up in a recent case published under the name of Sha and Cham. 

Mr Sha was married and co-owned a farm. He and his wife lived together in their matrimonial home.  He met Ms Cham in a massage parlour where she was working as a sex worker and shortly afterwards Mr Sha and Ms Cham began a relationship.   Mr Sha remained married and remained living with his wife.

Less than a month after they first began their relationship on a non-commercial basis, they began discussing having a baby together and Mr Sha asked Ms Cham to stop working at the massage parlour. He began visiting her at her home and stayed overnight on some occasions.  He began paying her $2,000 a month to help with her mortgage and other expenses and he bought her a couch. 

A few months after that Mr Sha gave Ms Cham $10,000 and then a few months after that they signed a financial agreement similar to a prenuptial agreement but for a de facto couple, which provided significant financial benefits for her.

These benefits were that he would give her half the value of his home within two years of the birth of their child, he would pay her $400 per week and another $400 per week for the living costs of the child.

Very shortly after that Ms Cham became pregnant through IVF. Mr Sha paid her car insurance and gave her another $8,000 within two days of that happy event.

Perhaps unsurprisingly, a month later Mr Sha and his wife separated. He gave her half the house by way of property settlement. 

In due course Ms Cham gave birth to a daughter. About five months after that the relationship between Mr Sha and Ms Cham broke down.  Shortly after that Mr Sha and his wife divorced. 

Ms Cham then went to court to get Mr Sha to perform the promises in the "prenuptial" agreement. Mr Sha said that they were never in a de facto relationship at all.  The trial judge disagreed with him and he appealed.  He lost again. 

The appeal court looked at common residence. Bear in mind that at this stage Mr Sha was still living with his wife.  Despite that, the court found that it was enough to have a common residence if attending the house were "regular and significant".  On that basis, some people might be living at their church. 

There was really no argument about financial dependence: Mr Sha was certainly paying Ms Cham. They didn't own or acquire property together but Mr Sha enjoyed Ms Cham's home as he wished and had bought an armchair and a lounge. 

The degree of commitment to a shared life was probably the easiest consideration for the court because the prenuptial agreement really evidenced that, Ms Cham accepted Mr Sha's promises about support and gave up her work as a sex worker and committed herself to have a child under the IVF program, no small commitment in itself. However, it still makes us reflect on a commitment to a shared life with one woman while still being committed at that point to shared life with one's wife. 

The court also looked at care and support of children, and equated an intention and commitment to have a child with the care and support of a child. That was another tick.

As to the reputation and public aspects of the relationship, there was little or nothing of this for the court to rely on except that Mr Sha's name was on Ms Cham's electricity account and that he met her daughter.

Mr Sha in his argument to the appeal court said that the trial judge did not reach a conclusion on each and every one of the factors he was supposed to conclude, before turning to her overall finding. The Full Court said that that was not her job and was not the court's job at all.  Rather, it was to look at the whole relationship because "each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other.  What must be looked at is the composite picture."  

In other words, it’s the vibe.