A de facto relationship has been explained in a previous article. We explore a case where the Full Court of the Family Court of Australia found that a de facto relationship existed for 18 months between a married man and a former sex worker. 

A very brief summary of the case of Sha & Cham is set out below:

  • The parties met at a massage parlour that Ms Sha worked in late 2011.
  • In February/March 2012, the parties began a sexual relationship
  • In mid-March 2012, the parties discussed having a baby together and Ms Cham stopped working at the massage parlour. 
  • The parties began to see each other at Ms Cham’s home where Mr Cha occasionally stayed overnight. 
  • Mr Cham provided financial support to Ms Sha, by way of monthly and lump-sum payments. The payments were applied towards Ms Sha’s rental accommodation and general living expenses as she no longer worked at the massage parlour. 
  • The parties entered into a Financial Agreement in August 2012.
  • Ms Sha fell pregnant in September 2012 and the parties had a child together in mid-2013. 
  • Mr Cham and his former wife, separated in October 2012. 
  • In November 2013, Ms Sha signed the separation declaration required under the Financial Agreement.
  • Ms Sha filed proceedings in the Federal Circuit Court to enforce the Financial Agreement. 

Mr Cham argued that he and ms Sha were not in a de facto relationship at the time of entering into the Financial Agreement. The Court deemed a de facto relationship to be in existence at the time of entering the Financial Agreement. 

Key takeaway points:

  • A de facto relationship can exist even though one of the spouse’s remains legally married. 
  • To determine whether a de facto relationship exists, the circumstances of the relationship need to be assessed and given weight as the Court deems appropriate. 
  • Mr Cham assured Ms Sha that he would support her and their future child which was evidenced by entering into the Financial Agreement.
  • Each factor under Section 4AA of the Family Law Act should not be looked at standing alone, but as to the context of the relationship as a whole. 

This case highlights the importance of seeking legal advice regarding your specific case, especially if you are considering entering into a Financial Agreement during your relationship, pre-marriage or post separation. 

If you are in doubt on what could happen in the event of a separation between you and a potential de facto spouse or wife/husband, we encourage you to speak to one of our friendly family lawyers at either our Gold Coast or Brisbane office.