In the context of the present discussion about reform of cohabitation law, a case decided by the Australian Court of Appeal provides a salutary lesson of problems which can arise.
In Sha v Cham (2017) Fam CAFC 161, the Australian Full Court found that the husband was in a de facto relationship with his sex worker who had claims against his financial resources, notwithstanding that he was still living with his wife. It is reported also in the NSW Law Society Journal Issue 39, p98.
The husband, Mr Sha, lived with his wife and met Miss Cham at a massage parlour where she worked. They began a sexual relationship, discussed having a baby and she stopped work at his request. He helped her with her mortgage and they entered into a Australian financial agreement. She became pregnant via IVF. The court at first instance held they had a de facto, cohabitation, relationship when they made their agreement. She therefore had claims against him. Under Australian law de facto claims are similar to marriage.
The Full Court said (para 28) that in determining whether two people have a relationship as a couple living together on a genuine domestic basis, the court is to have regard to all of the circumstances of their relationship which may include the matters to which the legislation refers. Whether such a relationship exists will depend on an assessment of all the circumstances of the relationship, each to be given such weight as the court considers appropriate. Each element that makes up a relationship should be considered in the context of all the aspects of the relationship
Specifically quoting Lynam v DG of Social Security (1983) 52 ALR 128.131, the Full Court said each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means there will be an almost infinite variety of combination of circumstances which may fall consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between un-related persons meets the statutory test.
Whereas marriage is invariably a monogamous relationship with claims arising by one spouse against another over a fixed pool of assets, introducing cohabitation claims inevitably creates the potential of parallel claims by the existence of parallel relationships, as in this case. A person may be married and have a parallel cohabitation relationship where both the spouse and cohabitant have claims. Ironically, a cohabitant with a child may well have greater claims than the spouse without a child. In the context where cohabitants are given similar or identical rights to those who are married, it’s unlikely that a court would give greater weight and share of the assets to one party who is married as distinct from the other who was not. A family court would therefore have the invidious task of weighing up the respective claims of the two spouses and the cohabitant in relation to the fixed pool of assets.
These situations are rare but not highly unusual in the diverse pattern of human relationships. Any reform has to embrace these situations and outcomes.