Whether, and for how long, a couple has been in a de facto relationship is still a matter of some uncertainty in both New South Wales and Queensland. A comparison of some recent decisions from each jurisdiction shows some significant trends in the interpretation of the nine factors set out by Powell J (as he then was) in D v McA. These factors are set out in s.4(2) of the Property (Relationships) Act 1984 (NSW) ["PRA"] and in s.32DA(2) of the Acts Interpretation Act 1954 (Qld) ["AIA"]. In New South Wales, the factors are expressed as relevant to whether the parties "live together as a couple". In Queensland, they are expressed as relevant to whether the parties "are living together as a couple on a genuine domestic basis".
Cases in both New South Wales and Queensland have been careful not to leap too readily to the view that parties are in a de facto relationship.
In Ziino v Crabtree, this was despite the fact that the parties shared a common residence and that the plaintiff had made substantial financial contributions to that property. McLaughlin M seemed to consider the lack of reputation and public aspects of the relationship sufficient to warrant a decision that there was no de facto relationship.
Carnovale v Dimos is perhaps the most similar to FO v HAF. In both cases, the respective courts held that the parties did not enter a full de facto relationship until they took up common residence together.
The early parts of each relationship, while the parties were still living apart, were held to have been periods of courtship only, which had not yet matured into de facto relationships.
Recent commentary has described Queensland courts as looking to a less formal approach than the once-established criterion of cohabitation, with less focus on the “traditional hallmarks that are thought to be marriage like (including public reputation, mingled finances and monogamy)”. However, this analysis must be questioned in the light of FO v HAF, and Keane JA’s comments in that case as to “whether the parties are living, or have lived, together to maintain a household in a relationship which exhibits the characteristics of the relationship of marriage, save for the solemnities involved in the formal exchange of wedding vows”.
In Queensland at least, common residence seems to take on more importance in determining the beginning of a relationship. Once an established relationship exists, cases such as W v T and PY v CY suggest that Queensland courts are prepared to find a continuation of that relationship despite the parties living completely apart.
This can be contrasted with the New South Wales case of Horton v Russell, where the parties had an on-again, off-again relationship in which they repeatedly lived together, separated, then lived together again. The parties maintained a sexual relationship during the periods they were living apart, but McLaughlin AJ considered they were not “living together as a couple” during those times.
There are several requirements that must be completed by an executor before the distribution of assets to beneficiaries.
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