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High Court of New Zealand Decisions |
Last Updated: 2 April 2012
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2011-485-1421 [2012] NZHC 503
BETWEEN DM Appellant
AND MP Respondent
Hearing: 2 February 2012
Counsel: R Laurenson for Appellant
R Faiga for Respondent
Judgment: 22 March 2012
JUDGMENT OF MILLER J
[1] The Family Court held that DM and MP lived together in a de facto relationship, for purposes of the Property (Relationships) Act 1976, at a time when DM maintains that he was living with another partner, Ms X.1 From that judgment he brings this appeal.
The narrative
[2] The parties began dating in 1999. In 2000 MP and her then six-year old son moved into DM’s home. She took paid employment in his business, working from his office at the home. They became engaged. They set up a joint account. Into it were paid their wages, and from it were paid rates, insurance, a mortgage and household living expenses. DM also supported MP’s son, to whom he formed a
fatherly attachment which appears to have continued throughout.
1 I adopt the parties’ nomenclature.
DM V MP HC WN CIV-2011-485-1421 [22 March 2012]
[3] In June 2003 DM left the home and moved in with Ms X, with whom he had commenced an affair the previous year. He left after MP discovered the relationship and issued an ultimatum. At first he told MP that he was going to live with his mother.
[4] MP and her son continued to live in the house, which they shared for some time with her sister. MP paid no rent, but her sister did. The parties remained on good terms. DM still came to the home for work, and they continued a regular sexual relationship. Their financial arrangements did not change, and they did not pursue a proposal to settle their financial affairs. MP and Ms X knew something of one another’s relationship with DM, and he went to social engagements with them separately. He continued his relationship with MP after learning that she had had an affair with another man in 2006, but he resented that relationship and his intervention brought it to an end.
[5] Although DM cohabited with Ms X, he did not set up a joint bank account with her or otherwise integrate their financial affairs. It seems she was financially independent.
[6] In February 2007 DM moved back into the home with MP. By that time he had transferred ownership of the property to a family trust, without MP’s knowledge. He claimed that he left Ms X’s home only because of conflict with her daughter and was merely boarding with MP. He continued his relationship with Ms X.
[7] In June 2008 MP left the home while DM was travelling in the United States. Their relationship had become strained and DM had been looking for another house to live in. The realisation that DM and Ms X spent the last night before his trip together was the final straw for MP. However, she was persuaded to join him overseas for the last leg of his journey. The relationship continued after they returned to New Zealand, but MP never returned to live at the home.
[8] In March 2010 MP ended the relationship. I understand that DM’s
relationship with Ms X still continues.
The issue
[9] The Family Court found that the parties lived in a de facto relationship from the beginning of 2002 until June 2003 but the relationship ended for a brief period when DM moved in with Ms X. It resumed in August 2003, ending finally in March
2010. The appeal concerns the finding that the parties resumed their relationship. DM maintains that after June 2003 he was in a committed relationship with Ms X, although he admits to an affair with MP.
The Family Court decision
[10] Proceedings must be commenced within three years of the relationship ending.2 MP filed these on 3 June 2010. She pleaded that the parties were in a de facto relationship between January 2000 and 2 July 2004 “and then on and off for 10 years” and “separated finally” on 4 March 2010. DM took the point that the application was out of time. The Family Court was asked to determine whether a de facto relationship existed, and if so when. Its judgment, like this one, is confined to
that issue.
[11] The Judge concluded without difficulty that a de facto relationship existed until June 2003. In reaching that conclusion he rejected as incredible DM’s evidence that although he invited MP to live with him, set up a joint account and shared household duties, purchased gifts for her, became engaged, and presented her publicly as his partner, the parties never entered a relationship in the nature of marriage or lived together as a couple.
[12] The Judge held that the legislation admits the possibility of more than one de facto relationship at the same time. The question is whether the relationship has the hallmarks of marriage. It is a question of fact. There had been a close relationship with a brief hiatus in mid-2003 when the parties discussed the division of property, but the parties chose to continue the relationship after August 2003 although it was
no longer exclusive. Not until 2010 was there a clear intention that the relationship
2 Property (Relationships) Act 1976, s 24(1)(c).
was at an end. The Judge pointed to the continued financial arrangements, appearances in public as a couple, gifts and travel. The only difference between this and a marriage was DM’s involvement with Ms X, but fidelity is not essential. The relationship with Ms X did not display all of the same characteristics. DM’s claim that he was in a committed relationship with Ms X and not with MP was “sheer nonsense”.
The appeal
[13] On appeal, DM contends that the Judge misdirected himself, failing to answer the question posed by the legislation; whether the parties lived together as a couple. He mistakenly asked whether the relationship was in the nature of marriage. The test is not an objective one, as the Judge suggested; the parties’ intentions matter. The Judge placed insufficient weight on the lack of mutual commitment to a life together, the evidence that the home was also a workplace, the long period during which they lived apart (June 2003 until February 2008, and June 2008 until the present), the evidence that MP stopped wearing her engagement ring, his relationship with Ms X which raised the possibility that he was in a de facto relationship with neither of them, and MP’s lack of interest in his hobby, boating.
[14] It is not in dispute that this Court must form its own view of the merits on appeal, but the appellant must show that the Family Court Judge was wrong and I must recognise the advantage that the Judge had when assessing credibility and reliability. He observed the witnesses over two days.
The legislation
[15] I begin by considering how the legislation defines a de facto relationship and how it responds to cases in which a couple have contemporaneous relationships with other people.
[16] The Property (Relationships) Act 1976 defines a de facto relationship as a
relationship between two adults who “live together as a couple” and are not married
or in a civil union with one another.3 When a court deals with the only controversial limb of this definition, whether two people live together as a couple, all the circumstances of the relationship are to be taken into account, including any of a list of indicia that may be relevant in the particular case. That list is found in s 2D(2):
2D Meaning of de facto relationship
(2) In determining whether 2 persons live together as a couple, all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case:
(a) the duration of the relationship:
(b) the nature and extent of common residence: (c) whether or not a sexual relationship exists:
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties:
(e) the ownership, use, and acquisition of property:
(f) the degree of mutual commitment to a shared life: (g) the care and support of children:
(h) the performance of household duties:
(i) the reputation and public aspects of the relationship.
[17] No finding about any of the indicia in that list is necessary. A court may consider such indicia, and attach such weight to any of them, as seems appropriate in the circumstances.4 So, for example, the parties need not invariably share a common residence; it is for the court to decide what weight to attach to cohabitation.
[18] A de facto relationship ends if the partners cease to live together as a couple or one of them dies.5
[19] The Act contemplates, albeit indirectly, that a person may live in more than one de facto relationship at any given time. Section 52B addresses the priority of
competing de facto claims, distinguishing between those cases where relationships
3 Section 2D(1)(b).
4 Section 2D(3).
5 Section 2D(4).
were successive and those where they were “at some time contemporaneous”. The legislation thus establishes that a de facto couple need not “live together” to the exclusion of others. More than that, a person may live in more than one de facto relationship at any given time, so the idea of a relationship in which two people “live together as a couple” must accommodate that possibility.
[20] Parliament chose this definition rather than the familiar concept of a relationship “in the nature of marriage”,6 although the latter survives as a definition of de facto relationship for general purposes in the Interpretation Act 1999.7 The definition is relevantly identical to that now found in the Property (Relationships) Act 1984 (NSW).
[21] The evolution of the definition offers some insight into its meaning. When first enacted, the 1984 New South Wales legislation simply provided that in a de facto relationship the parties live together “as husband and wife on a bona fide domestic basis” although not married to one another. In D v McA, a 1986 decision, the Supreme Court of New South Wales established a list of indicia of such relationships, emphasising as it did so that relationships may vary markedly and the
indicia were not exhaustive.8 That list is identical to, and plainly the primary source
of, the indicia now found in s 2D(2). In 1999 the New South Wales legislation was amended to the same ‘living together as a couple’ definition that is now found in the New Zealand legislation. That was done not because it was thought that a de facto relationship differs in substance from marriage but because same-sex couples, whose
relationships the 1999 amendments capture, could not marry.9 The amendments also
added the list of indicia from D v McA, although the indicia had addressed the former definition, a couple living together “as husband and wife”. The New South Wales legislature evidently found the indicia no less applicable to the new definition
than the old.
6 Scragg v Scott [2006] NZFLR 107 at [26].
7 Section 29A.
8 D v McA (1986) 11 Fam LR 214.
9 Nicola Peart “The Property (Relationships) Amendment Act 2001: A Conceptual Change” (2009)
39 VUWLR 813 at 822; and Justice and Electoral Select Committee Report on the Matrimonial
Property Bill and Supplementary Order Paper No 25 at 7.
[22] In New Zealand the Justice and Electoral Select Committee copied the 1999
New South Wales definition, including the indicia, because “in the nature of marriage” was thought to be uncertain and because some submitters had been offended by de facto relationships being defined in that way.10
[23] The legislation delegates to the courts the work of deciding what minimum characteristics are required of a de facto relationship or, to put it another way, what it means to live together as a couple. An inquiry into substantive characteristics is unavoidable not because de facto relationships need differ from marriage but because, unlike marriage, they need not be created by ex ante agreement. The court must decide not only what characterises a de facto relationship but also when such relationship began and ended. Marriage and civil unions are opt-in relationships in which the commencement date is known, but the law may impose the legal status of a de facto relationship retrospectively upon parties whose relationship gradually and without conscious election assumed that character.
[24] These decisions are intrinsically difficult in the marginal cases that reach hearing,11 and they matter all the more because the Act generally affords de facto relationships of more than three years duration the same status as marriages. The Act’s objective of extending the community property regime from marriage to de facto relationships rests on the explicit premise that in such relationships, as in marriage, both parties normally contribute in different but equal ways.12 Put another way, the legislature had in mind relationships in which the differing contributions of two people to their shared life justify the presumption of equal sharing. In this respect the Act differs distinctly from the New South Wales legislation from which the definition was taken. That legislation created a specific community property regime for people in de facto relationships. It did not establish a presumption of equal sharing of relationship property; rather, the criterion for division was justice
and equity.13 A different community property regime applied to marriage.14
10 The Justice and Electoral Select Committee Report at 7. The Committee also referred with apparent approval to Thompson v Director-General of Social Welfare [1994] 2 NZLR 369, which concerned a relationship in the nature of marriage and identified a slightly different set of indicia.
11 A good example of the careful inquiry that the Family Court must undertake is provided by Scott v
Ferguson (2005) 24 FRNZ 377.
12 Section 1M(b).
13 Section 20 Property (Relationships) Act 1984 (NSW).
[25] In summary, several points may be drawn from this discussion of the legislative purpose and history. A de facto relationship under the Act is one which, no less than marriage, justifies the presumption of equal sharing. It is a relationship of substance. But unlike marriage the status of a given relationship rests on a judicial inquiry into its substance. When undertaking that inquiry the court must consider whether factors that earlier judicial decisions established as indicia of relationships in the nature of marriage are relevant, and if they are it must place them in the balance, giving them such weight as seems right. However, the question that the court must answer is not whether a given relationship exhibits any or all of the indicia, which were included to draw the court’s attention to relevant considerations. The question is whether the parties lived together as a couple.
[26] A court must interpret the term “de facto relationship” in its specific legislative setting.15 When the definition is read against the purpose and history of this legislation, a mutual acceptance of exclusivity, relative to other potential partners in general, inheres in the notion of living “together” as a “couple”. In ordinary usage to live is to spend one’s life in a particular way, to supply oneself with the means of subsistence, to make one’s home in a particular place. The statutory indicia of a shared life are broadly consistent with a substantial degree of exclusivity in qualifying relationships. They may be summarised as relationship
duration, which is likely to have been indefinite when established, cohabitation and household duties, financial interdependence and property use or ownership, sexual dimension, children, and public status.
[27] Two points of particular relevance to this case should be made about the indicia. First, it has been suggested that one of them, mutual commitment to a shared life, lies at the core of the definition.16 I take that to mean that a mental commitment to sharing life is normally required of a de facto relationship. The other indicia establish, however, that such commitment may be evidenced by conduct.
[28] Second, a de facto relationship is likely to involve cohabitation; that is how most couples choose to share their lives, and the legislation was enacted because
14 Under the Family Law Act 1975, which has since been updated to include de facto relationships.
15 Ruka v Department of Social Welfare [1997] 1 NZLR 154 (CA).
16 Scragg v Scott, at 32; and Peart, above n9, at 823.
unmarried cohabitation had become commonplace.17 To recognise that is not to deny that sometimes couples choose to conduct a shared life without cohabiting.18
Nor is it to suggest that cohabitation is paramount; the legislation says otherwise. Nor is it to suggest that a couple who cohabit are necessarily in a de facto relationship. It is merely to point to a feature that experience identifies as common to most de facto relationships and for that reason significant for a court which is assessing any given relationship.19
[29] It follows from all of the above that contemporaneous de facto relationships are not likely merely because the legislation admits their existence. On the contrary, a contemporaneous de facto relationship with a different partner tends to show that the relationship before the court lacks the character of a life lived as a couple. The legislation governs division of the property of a relationship between two people. and there must be natural limits to one’s capacity to spend the only life that one has
in contemporaneous bilateral relationships with more than one person.20 Sometimes
neither relationship qualifies as a de facto relationship. Contemporaneous de facto relationships may be most likely when A cohabits intermittently with each of B and C, maintaining two households on an indefinite basis. Each such relationship might be so substantive that the legislative objective would be defeated were A permitted to escape legal obligations to B and C by pleading that neither relationship was sufficiently exclusive.
The test applied in this case
[30] It follows that in my opinion the Judge did not err by referring to a relationship in the nature of marriage. He did not substitute that test for the language of the statute, and even if he did the point offers no aid to DM. It cannot be suggested that such test is too liberal. Nor, contrary to Mr Laurenson’s submissions,
did the Judge employ the objective criteria in s 2D(2) to the exclusion of the parties’
17 Justice and Electoral Committee Report at 5.
18 Galvin v Brocklehurst [2006] NZFLR 1047; and B v F (De facto relationship) [2009] NZHC 1165; [2010] NZFLR 67.
19 For example, O v K [2004] NZFLR 507; Ferguson v Fish Family Court North Shore FAM 2003-
044-1-895, 13 September 2004, Judge Ryan; and G v C Family Court Auckland FAM 2004-004-
1-588, 1 May 2006, Judge Burns.
20 For example, Public Trust v C [Relationship Property] [2009] NZFLR 514.
evidence about their subjective commitment. The Judge held that the views of the parties “have some relevance” but the Court must make an objective assessment of the facts. After reviewing the evidence the Judge also inquired rhetorically how it was all to be viewed “from an objective perspective”. Mr Laurenson emphasised the latter statement, but on the face of it the Judge was merely reminding himself of the need for objectivity in the exercise of his own function. The evidence reviewed included the parties’ own beliefs about their relationship, and the Judge concluded that DM must have “seen himself” in a relationship with MP.
Were the parties living together as a couple?
[31] The parties did live together as a couple until June 2003. That is no longer controversial. The Judge found that the relationship ended for a brief period, resuming about August 2003. He founded that conclusion primarily on the parties’ discussions in June 2003 about dividing their property.
[32] The question is whether the previous de facto relationship did resume. In most respects it did. What differed was the now more or less open relationship with Ms X, the fact that between June 2003 and February 2007 DM shared a house with Ms X, and the fact that they lived apart after June 2008, when MP left the house.
[33] I am not persuaded that the Judge ought to have placed more weight on the relationship with Ms X, for three reasons. First, DM’s relationship with Ms X displayed fewer indicia of a de facto relationship; they did live in the same house for a considerable time and go out as a couple, but they never merged their financial affairs. DM never formed the same attachment to Ms X’s daughter, who evidently resented him, that he has to MP’s son. I observe that while Mr Laurenson described the relationship with Ms X as committed, he avoided characterising it as a de facto relationship and the Family Court Judge plainly considered it a less substantial relationship than that with MP. In the circumstances, I am not prepared to hold that this is a case of contemporaneous de facto relationships.
[34] Second, robust indicia of a de facto relationship with MP remained while he cohabited with Ms X. They chose not to settle the division of property in 2003, after
agreeing that they would do so. What stopped them was the resumption of their relationship. Indeed, what happened in mid-2003 might be better characterised as a separation. MP remained in the house, which was in law DM’s to control, and she did not become a tenant. They retained their joint bank account and their salaries were still paid into it. From that account they still paid the mortgage, rates and insurance and MP’s living expenses. They retained joint medical insurance. They socialised together. Their sexual relationship continued. I reject Mr Laurenson’s submission that these things can be described as historical. As the Court held in Scragg v Scott, the Court is likely to find that an established de facto relationship
subsisted until someone took steps to end it.21 That happened in March 2010, when
MP finally called a halt.
[35] Third, DM conceded that he had “played’ both women, neither of whom approved of the other relationship or knew its full extent. DM saw him as her partner with him enjoying a sexual liaison elsewhere, because that is what he led her to believe. The Judge found him a poor witness, rejecting as incredible his claims that when he returned to live with MP he was a mere boarder. Ms X did not know that he carried on a sexual relationship with MP. Mr Laurenson emphasised that misconduct cannot determine the nature of the relationship; that is, the Court should not allow its view of DM’s behaviour to alter its assessment. But while he formed a poor opinion of DM, the Judge did not place too much emphasis on his treatment of MP. Rather, he fairly observed that DM need not have misled either woman if his relationships with them were as casual and open as he would have the Court believe.
[36] Mr Laurenson also pointed to evidence that DM never felt a deep attachment to either woman. DM said in evidence that he could not commit to either of them, for he had never quite grown up. But it is not in dispute that after 2003 he did not offer either woman an exclusive relationship. The definition contemplates a mutual acceptance of exclusivity relative to other prospective partners in general, but it also contemplates that a person may live in more than one bilateral relationship contemporaneously. DM might live in a de facto relationship with MP while
cohabiting with Ms X.
21 Scragg v Scott at [513]; and Ruka v Department of Social Welfare, above n13, at 166, per Henry J.
[37] Next Mr Laurenson pointed to MP’s sexual relationship with another man. It subsisted for as long as 12 months, coinciding with a period when DM had returned to the home. But he and DM both regarded it as an affair and he insisted it end as soon as he learned of it, making it plain that he expected fidelity of MP.
[38] Mr Laurenson next pointed to evidence that MP never displayed any interest in DM’s hobby, power boating. It is drawing too long a bow to suggest that couples must share one another’s hobbies. Finally, Mr Laurenson noted that MP ceased, probably in June 2003, to wear the engagement ring that DM had given her in 2000. That merely signifies that she no longer thought of herself as engaged to be married.
[39] These submissions fail to persuade me that the Family Court Judge was wrong to find the parties were in a de facto relationship between August 2003 and March 2010. On the contrary, the relationship retained throughout important indicia of a de facto relationship, notwithstanding DM’s contemporaneous relationship with Ms X. The parties cohabited for a substantial period, and MP lived in his house rent- free at other times. Their financial affairs were substantially merged, they conducted themselves as a couple in public, they supported her son, and they maintained a sexual relationship. In all of these ways they evidenced a substantial commitment to one another. Not until 2010 was that state of affairs ended.
Decision
[40] The appeal is dismissed.
[41] MP is entitled to costs on a 2B basis. If counsel are unable to reach agreement they may file memoranda.
Miller J
Solicitors:
Sievwrights Law, Wellington for Appellant
The Law Store, Porirua City for Respondent
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