LSB September 2019_Web

FAMILY LAW
Does living apart preclude ‘living
with’ when applying for declarations
of domestic partnership?
MARK TAYLOR, EDMUND BARTON CHAMBERS
The answer to the question posed in
the headline turns, unsurprisingly,
on the facts and circumstances of each
case. This article focuses primarily upon
the court’s interpretation of “living with/
living together.” The factual and temporal
requirements of domestic partnership
declarations will not be addressed but
remain crucial considerations for a
practitioner applying for declaratory relief.
Section 11A Family Relationships Act
1975 (FRA) states that:
“A person is, on a certain date, the
domestic partner of another if—
…
(b) the person is, on that date, living with
the other in a close personal relationship
and [the temporal requirement- not
discussed in this article.]”
A close personal relationship means:
“… the relationship between 2 adult persons
… who live together as a couple on a genuine
domestic basis…”
INTRODUCTORY POINTS
• A court is not relieved of its obligation
to assess an application even if all
affected parties are unanimous in their
view of the purported relationship. 1
• Interstate authority demonstrates
the interpretive approach of other
Australian courts.
• The common judicial interpretation of
a de-facto spouse has been used by way
of analogy in South Australia. 2
• Though interstate and analogous
authority may be useful in assessing the
method by which the judiciary interpret
such applications, practitioners must
be aware of the varying definitions and
eligibility criteria.
• A court will analyse the relationship in
the round to identify the true nature
of the relationship by weighing up
the various non-exhaustive statutory
40 THE BULLETIN September 2019
factors 3 to determine that the applicant
was “living with the other in a close
personal relationship” 4 on a certain date.
• The Briginshaw 5 principle applies
to such applications: a court must
be convinced “…on the balance of
probabilities but with due regard to the
gravity of the consequences of making
the declaration sought.” 6
• In Simonis v Perpetual Trustee, it
was held that“the expression
under consideration constitutes a
single composite expression of a
comprehensive notion or concept,
and therefore has to be approached by
considering the expression as a whole
and not in several parts.” 7
To account for the infinite scope
of relationships, “living with” has been
interpreted widely. In 1919, the English
Court of Criminal Appeal held that a
husband and wife were “… living together,
not only when they are residing together
in the same house, but also when they are
living in difference places… provided the
consortium has not been determined.” 8 In
Australia, the High Court required both a
physical separation and the destruction of
the consortium vitae of the relationship
to demonstrate that a couple was living
“separately and apart.” 9 In an earlier
case, the House of Lords contrasted
partners being located in different places
with situations where there has been a
“rupture” 10 in matrimonial relations.
More recently, the South Australian
Supreme Court held that cohabitation (as
it was defined then) “does not necessarily
imply that they are always living together
under the same roof, and there may be
states of cohabitation where they see as
much of each other as they can, and yet
are not separated because there has not
been any real suspension of their ordinary
conjugal relation.” 11
It is contended that the above
considerations provide a sensible starting
point as to how a court might interpret one
person living with another. Whilst living
apart does not necessarily preclude living
together, the central question is whether
there has been a determination, rupture or
destruction of the relationship in question.
An attempt to rely upon a narrow
interpretation of “living with” was
expressly rejected in Victoria, the phrase
“… should not be construed on narrow,
formal, pedantic or merely geographical
criteria but should be considered taking into
account the human reality of the personal,
emotional and cultural complex.” 12 Partners
may be physically separated for a range
of reasons whilst still maintaining a close
personal relationship; it would be wholly