Contracting Out Agreement not binding in respect of the status of a relationship …

A reminder from the High Court that the purpose of a contracting out agreement is to make agreement in respect to the status, ownership, and division of property – not to determine the status of the relationship.  Where there is such a question (which the parties cannot resolve by agreement), it is the Court’s role to enquire and make a decision.

In a recent case, a contracting out agreement recorded that a couples’ de facto relationship began in 2006.  Following the couple’s separation, there was a dispute in respect of the length of the relationship which affected one party’s entitlements.  One party sought an order that the de facto relationship began in 2005.

The High Court determined that the contracting out agreement correctly recorded the relationship’s start date.  This conclusion was only reached however, after the Court took into account various factors including that by 2006:

• One partner had finally and permanently broken off their relationship with another person;
• One partner had spent a period of time overseas beforehand, the time apart had confirmed the couple’s commitment to one another;
• Following one partner’s return from overseas, the couple progressed to spending virtually every night together, rather than four or five nights a week; and
• The couple obtained a pet together.

There are a raft of factors that a court can take into account when determining whether a couple is ‘living together as a couple’ in a de facto relationship.

Each decision will be made on its particular facts – this has seen relationships of a 20 year duration not considered de facto and, conversely, relationships with very deliberate separation of finances and living arrangements considered de facto.