Howland v Ellis [2001] NSWCA 456

Howland v Ellis [2001] NSWCA 456

The de facto relationship did not automatically end with the appellant's imprisonment; absent evidence of intention to end the relationship, mere physical separation (even due to imprisonment) does not end a de facto partnership. The claim was not substantially out of time, and leave to apply out of time should have been granted; the appellant was entitled to a property adjustment reflecting a just and equitable share (15% of the property, or $70,000).

Parties
Appellant: John Robert Howland; Respondent: Lalla Carmella Ellis
Jurisdiction
Australia
Judgment Date
10 December 2001
Procedural Posture
Civil Appeal / Appeal From Supreme Court Equity Division, Master Decision
Outcome
Appeal allowed
Legal Topics
De Facto Relationships, Distribution of Property, Limitation Period, Credibility of Evidence
Family Law De Facto Relationships Distribution of Property Limitation Period Credibility of Evidence

Case Brief

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Parties

John Robert Howland

Appellant

Lalla Carmella Ellis

Respondent

Procedural Posture

Civil Appeal / Appeal From Supreme Court Equity Division, Master Decision

Legal Issues

  1. 1 When does a de facto relationship, for the purposes of the De Facto Relationships Act 1984, end?
  2. 2 Whether physical separation due to imprisonment ends a de facto relationship without a clear intention to end it
  3. 3 Whether leave should have been granted to bring a property claim out of time

Ratio Decidendi

The de facto relationship did not automatically end with the appellant's imprisonment; absent evidence of intention to end the relationship, mere physical separation (even due to imprisonment) does not end a de facto partnership. The claim was not substantially out of time, and leave to apply out of time should have been granted; the appellant was entitled to a property adjustment reflecting a just and equitable share (15% of the property, or $70,000).

Court Disposition

Appeal allowed

Orders

  • Appeal allowed.
  • Each party to pay his or her own costs of the appeal.