Publish Date: June 4, 2020
Section 4AA(1) of the Family Law Act sets out the principles that apply to defacto relationships. This Section mandates that regard must be had to all the relationship circumstances in determining whether it is one of a couple living together on a genuine domestic basis.
Section 4AA(2) sets out some of the circumstances to be considered, including “whether a sexual relationship exists”, and Section 4AA(3) provides in effect that no particular finding is determinative.
Each case falls to be considered on its unique facts in determining whether, “having regard to all of the circumstances”, it can be concluded that the relationship under consideration is “as a couple living together on a genuine domestic basis”.
The Effect of Family Violence
It does not follow that the presence of family violence within a relationship cannot have determinative significance as to whether the relationship meets, or continues to meet, the statutory definition.
There will be cases where the nature and extent of family violence and/or its effects upon the victim render untenable the characterisation of that relationship as one of “a couple living together on a genuine domestic basis”.
The perpetration of family violence is entirely antithetical to the element of mutuality which may generally be accepted as an element, at least to some degree, in a genuine relationship as a couple.
It follows that family violence will always be highly relevant as one of the circumstances to be considered in determining whether, on review of all of the circumstances of the relationship, the statutory test is met
What needs to be demonstrated to find that “separation” has occurred?
The law is that there must be three things to be satisfied to establish that separation occurred. One party or both parties must form an intention to end the relationship, that party must act upon the intention and must communicate that intention to separate to the other party.
The real issue is not whether the parties “separated”, but whether the de facto relationship broke down or ceased.
Thus, it is not even necessary to specifically enquire as to whether an intention to separate was formed, and that intention was acted upon and/or communicated to the other party.
There is no mention in the Family Law Act, and in particular, in the definition section (s 4AA) of there needing to be an intention formed to either enter into a de facto relationship or to end it.
The Full Court in Clarence & Crisp  FamCAFC 157; (2016) FLC 93-728 correctly identified the test to determine whether a de facto relationship has come to an end.
The Full Court said as follows:
Family law act“Ultimately, however, we consider the real test (since it conforms with the statute as a matter of logic) was that identified by Murphy JA earlier in H v P [ WASCA 78]:… a de facto relationship is inherently terminable at any time, and continues to exist only insofar as the indicia which give the relationship its character continue to exist.
The task of determining whether a relationship has ended at or before a particular date is precisely the same task that must be performed when determining whether a de facto relationship exists in the first place – i.e. by reference to the indicia laid down in the legislation.
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