What happens when one party to a de facto relationship says a relationship is over and the other party says the relationship is not over and both parties continue to live together under one roof? Who is required to prove the existence of the relationship? Who proves the separation?

Pursuant to section 4AA(1) of the Family Law Act a person is in a de facto relationship with another person where they are not legally married to each other or related by family and where on all the circumstances of the relationship they are a couple living together on a genuine domestic basis.

Section 4AA(2) of the Family Law Act lists circumstances where people are considered to be in a de facto relationship, including whether a sexual relationship exists.

In a recent family law case, the de facto wife argued that separation occurred in 2011 to 2012, even though the parties lived under one roof until 2015. The de facto husband's application sought a declaration that the de facto relationship began in 2010 and ended in 2015 and sought an order for an equal division of property. In this case the de facto husband was convicted of acts of violence and sexual assault against the de facto wife, and went to gaol for those crimes.

Mistakenly, the trial judge put the onus of proving on the de facto wife to prove that the relationship had ended. However, on appeal the court found that the onus was on the de facto husband to establish that he was still in a relationship with his de facto wife after 2012 until 2015, pursuant to the terms of s4AA of the Family Law Act. Essentially, the de facto husband had to prove that on the unique circumstances of his relationship that it could be concluded that he was still in a relationship on a 'genuine domestic basis' as both he and his de facto wife remained living together.

The comparison of circumstances prior to 2011 or 2012 with the subsequent circumstances of the de facto relationship, which involved the violence and sexual assault against the de facto wife by the de facto husband constituted a finding that the de facto relationship had ceased at that time.

If an intention to end a de facto relationship can be identified, this remains significant evidence to be taken into account under s4AA of the Family Law Act, pursuant to s4AA(4) of the Act.

In this case, it was held the de facto wife formed an intention to end the relationship and also acted on her intention and communicated her intention to separate to her de facto husband, due to the background of severe domestic violence and sexual assaults against the de facto wife by the de facto husband.

The appeal was allowed and the case will require another trial.

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