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 about 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.
