Tuesday, 22 April 2008

Case: NSW Supreme Court: when is there a de facto relationship?

In Hayes v Marquis, a decision of the NSW Court of Appeal, the majority of the court held that the parties were in a close personal relationship including for a period of 3 years when Mr Hayes slept over at Ms Marquis' home 3 nights a week.

The majority held:

-The question whether one of the statutory relationships which attracts jurisdiction under the Property (relationships) Act 1984 NSW exists, is fact dependent and requires a practical approach. The concept of “living together” in s 5(1)(b) of the Act does not require the parties to live together fulltime.

-The question of whether a couple is “living together” turns on an evaluation of the nature and extent to which they share a household and is ultimately a value judgment, which has regard to the three indicia under s 5(1)(b) to determine whether there is a relationship which fulfils the definition as a whole.

-The requirement in s 5(1)(b) that one or each of the parties provides the other with “personal care” may be satisfied through the provision of either physical or emotional support.

-Statements to a government authority apparently inconsistent with a party’s case are taken into account as a part of all the circumstances, and are not determinative of whether a relationship exists for the purposes of the Act.

-Parties to proceedings under the Act are obliged to make full and frank disclosure of all relevant financial circumstances [or as been commented elsewhere- a case of "show and tell" not "hide and seek"].

-It is open to the Court to give full weight to the parties’ pre-relationship contributions, in considering the terms of any s 20 order, if they fall within s 20(1)(a) and (b).

The case is also testimony to the sometimes pyhric nature of appeals. The appeal was successful, resulting in the amount having to be paid decreasing from $140,000 to $120,000- the difference being less than each of the parties probably incurred on the appeal.

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