Jenise Kay Parij v Leo Michael Parij No. Scgrg-96-1673 Judgment No. 6463 Number of Pages 20 Equity

[1997] SASC 6463

IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA

COX, MILLHOUSE AND DEBELLE JJ

CATCHWORDS:

Equity - trusts and trustees - constitution and classification of trusts generally - constructive trust - unconscionable retention of benefit - unmarried couple living in de facto relationship for 17 years - house furniture and motor car acquired in joint names - man acquires other assets in his name - dissolution of de facto relationship - whether woman entitled to an interest in both joint assets and assets owned by man - woman held to be primary housemaker and caregiver - woman held to be entitled to a twenty per cent interest in jointly owned assets and a twenty per cent interest in assets owned by man - appeal allowed. Dunne v Turner Court of Appeal, 20 August 1996, unreported, considered.

HEARING:

ADELAIDE, 7 March 1997 (hearing) 9 December 1997 (decision)

#DATE 9:12:1997

#ADD 16:12:1997

Appearances:

Appellant:

Counsel: Mr S Walsh QC with Mr D Haines

Solicitors: Scammel & Co.

Respondent:

Counsel: Mr R Evans with Ms R Croydon

Solicitors: Andersons Solicitors

ORDER: appeal allowed.

COX J

The circumstances of this appeal are set out in the reasons of Debelle J. The learned trial Judge allowed the plaintiff's claim where he could find a common intention of equal ownership regardless of the respective financial contributions by the parties to the acquisitions in question. The plaintiff thus succeeded with respect to the Redwood Park house and the furniture and the Nissan car. She failed, however, in her claim to a beneficial interest in other assets owned by the defendant, chiefly because she had made no direct contribution to their acquisition. In my opinion the learned Judge applied too narrow a test in rejecting the plaintiff's argument for a constructive trust. I am in general agreement with Debelle J's reasons on this aspect of the appeal. (I add a reference to the Queensland case of Dunne v Turner : Court of Appeal, 20 August, 1996, unreported.) The plaintiff's maintenance of the home and her care for the defendant and their children over a period of many years helped to make it possible for the defendant to earn a substantial income and thereby acquire the assets that are the subject of this dispute, and it would be unconscionable now to deny her such an interest in those assets as represents the worth of her substantial if indirect contribution to them. The plaintiff appellant is therefore entitled to succeed with respect to her primary ground of appeal.

I agree with Debelle J that it would be oppressive to send the matter back for further hearing as to the extent of the plaintiff's interest. I also agree with his exclusion of the Toyota and the boat and the Rajah Holdings Pty Ltd loan. As for the rest, I think it important that when the parties started living together in 1978 they owned practically nothing, that they lived together for seventeen years, that there was no general pooling of income, and that while they were at Alice Springs the plaintiff was earning an appreciable income in part-time employment and that for most of their time together in Adelaide she was working full-time. I would reckon her interest in the houses at St Agnes and Port Vincent and in the defendant's accountancy practice at twenty per cent of the defendant's beneficial interest in them.

That leaves the matter of the superannuation fund. The learned trial Judge, when refusing the plaintiff leave to amend her statement of claim at the beginning of the trial in order to support her claim against the superannuation fund, relied upon established caseflow management principles and also his view at the time that the plaintiff appeared to be relying upon "an extremely dubious proposition of law" so that refusing to allow the plaintiff to pursue it would not necessarily cause her any injustice. His Honour also considered that any amendment of the pleadings at that stage would provoke an application by the defendant for an adjournment of the trial. Obviously I do not share his Honour's view about the plaintiff's poor prospects of success, and it is not plain in the circumstances that the defendant would have needed any more time to prepare his case with respect to the superannuation fund. I think that the Judge should have allowed the amendment. Some evidence on the subject was, in fact, led at the trial, and it would seem from defence counsel's submission to us on the appeal that no prejudice to the defendant in the relevant sense would follow from our dealing with the plaintiff's claim on the superannuation fund now. However, as Debelle J explains, there may be practical obstacles to simply ordering that the plaintiff should have twenty per cent of the defendant's present equitable interest in the fund. The only course open is to remit the issue to the District Court for further enquiry and subsequent order in accordance, so far as possible and practicable, with the judgment of this Court.

For these reasons I would allow the appeal and vary the order of the District Court as follows :

1. By adding after the word "equally" in the declaration the following:

"AND THIS COURT DOTH FURTHER DECLARE that the plaintiff has a twenty per cent interest in

(a) the business of the defendant known as Parij & Co.;

(b) the house property at 10 South Street, Port Vincent in the State of South Australia and all of the furniture in the said house;

(c) the house property at 10 Sarnia Farm Road, St Agnes in the said State.

2. By deleting paragraph 3 of the order and substituting therefor the

following:

(3) That the matter be referred to a Master for

(a) assessment of the interest, if any, of the plaintiff in the superannuation fund known as the Parij Retirement Fund;

(b) assessment of the value of the business of the defendant known as Parij & Co.;

(c) conducting the inquiry and account referred to in paragraph 2 of this order.

(4) In conducting the inquiries and accounts referred to in this order the Master is at liberty to appoint a court expert to report on the issues before him.

3. By renumbering paragraphs 4 and 5 to paragraphs 5 and 6.

The defendant's cross-appeal was abandoned at the hearing. It should be formally dismissed.

MILLHOUSE J

I agree.

DEBELLE J

This appeal from a District Court Judge stems from a dispute about the division of property between a couple who had lived in a de facto relationship for seventeen years until it came to an end in March 1995. The plaintiff was the female partner in the relationship. She is the appellant. I will refer to the parties as plaintiff and defendant.

The trial judge held that the parties were equally entitled to a house property at Redwood Park which was the home they had occupied at the dissolution of the relationship, the furniture in the house and a Nissan motor car which was used by the plaintiff. Applying Calverley v Green (1984) 155 CLR
242, the trial judge held that the parties held a common intent to share equally the family home, the furniture in it, and the motor car used by the plaintiff regardless of their respective financial contributions to the acquisition of those assets. There is no appeal from that part of the judgment.

The plaintiff had also claimed an interest in other assets owned by the defendant. She had claimed that those assets as well as the joint assets were impressed with a constructive trust. The trial judge held that, as the plaintiff had made no financial contribution to the other assets held by the defendant, she was not entitled to an interest in them. Those assets were a house property at St Agnes, a house property at Port Vincent and the furniture in that house, the accounting practice of the defendant, a boat, and a Toyota motor car. The plaintiff appeals against that part of the judgment. The plaintiff also appeals against the decision of the trial judge refusing her leave to amend her statement of claim to plead the basis on which she made her claim, which included the claim for a constructive trust, as well as to include a claim to an interest in a superannuation fund called the Parij Retirement Fund.

In order to understand the issues, it is necessary to summarise the history of the relationship between the parties. There is no substantial dispute about the history of the relationship. The trial judge generally preferred the evidence of the plaintiff on all issues but strictly financial matters, where it was in conflict with the defendant. This summary is based on the findings of the trial judge supplemented by a small part of the evidence.

In 1977 the plaintiff was living in Mannum with her daughter from a previous relationship. She was employed as a barmaid in the Pretoria Hotel at Mannum. The defendant conducted the business of the Pretoria Hotel. In 1978 the defendant separated from his wife and began to live with the plaintiff in a de facto relationship in accommodation rented by the plaintiff. The business of the Pretoria Hotel encountered financial difficulties. The defendant gave up the business. He owed money to his creditors. In the next two years he obtained employment as an accountant, first in Murray Bridge and later in Adelaide. In this period the plaintiff took some casual employment.

Despite talking about marriage, the parties did not marry. The defendant's marriage was not dissolved until 1986. The plaintiff always wished that they would marry and raised the question on a number of occasions. The defendant did not ever agree to marry. While they were living in Mannum, the defendant gave the plaintiff a ring, which she wore thereafter as an engagement ring. Later he gave her other rings. The plaintiff expected that in due course they would be married, and so did the defendant. Generally speaking they had a loving and happy relationship until 1994. The first child of the relationship, a daughter, Megan, was born on 30 September 1979. The second child, Matthew, was born on 12 May 1982.

In early 1980 the defendant accepted an offer of better employment with an accounting firm in Alice Springs. The plaintiff went to Alice Springs with him, with Megan and her daughter of her previous marriage. They lived in rented accommodation, the defendant's employer paying an allowance towards rent. Towards the end of their first year in Alice Springs, the plaintiff obtained weekend employment at a supermarket and, later, other employment at a video shop. She was able to earn a significant income during the rest of the time in which they were living at Alice Springs. Upon the move to Alice Springs, the plaintiff adopted the defendant's surname and gave the appearance of being his lawful wife. She wore a wedding ring. The defendant acquiesced in the plaintiff giving the appearance of being his wife and, on occasions, he held her out as his wife.

When they moved to Alice Springs in 1980 the defendant owed about $10,000 to creditors of the hotel. That was then a substantial sum. In the next two years he repaid those debts. When they first came to Alice Springs the parties had no significant assets, apart from a Holden motor car owned by the defendant.

The defendant prospered in his accounting work in Alice Springs. He also profited from small property ventures into which he entered with some friends. The plaintiff was not concerned in them and knew about them in general terms only.

In early 1984 the defendant left the accounting firm and took employment as an accountant with Sitzler Brothers, a large construction firm in Alice Springs. Although he forfeited the rental allowance paid by his previous employer, his new employer agreed to lend him $14,000 towards the purchase of a house on the understanding that the defendant remained in his employ for five years. In February 1984 the parties purchased a house at 39 Dixon Road, Alice Springs for $62,500. At the instigation of the defendant, and with the concurrence of the plaintiff, the house property was registered in their joint names as joint tenants. The purchase price was obtained by a mortgage of $50,000 to which both the plaintiff and the defendant were parties and by the loan from Sitzler Brothers. Neither the plaintiff nor the defendant contributed anything from their own monies to the acquisition of the Dixon Road property.

In about 1984 the parties jointly purchased a Mazda 929 motor car. It was used by the plaintiff as her car. The defendant's Kingswood motor car was used as a trade-in. By this time the defendant had acquired a Mazda RX7 for his own use. The parties each contributed to the instalment payments for the Mazda 929 from their respective earnings.

By 1985 the plaintiff wanted to return to Adelaide. The defendant agreed. He entered into partnership as a public accountant with a Mr Koster. The partnership business of Koster Parij & Co commenced in June 1985 and the defendant then returned to Adelaide to live. The defendant was required to pay Koster $10,000 for an interest in the plant and equipment used in the partnership. That was financed by a loan from the National Bank at Norwood. That loan was repaid when a fixed deposit held by the defendant with the Commonwealth Bank matured.

When the defendant moved to Adelaide the plaintiff remained at Alice Springs as the parties did not wish to take their children out of school during the year. It was also agreed that the plaintiff would remain in Alice Springs until the Dixon Road property had been sold. The loan from Sitzler Brothers was repaid shortly after the defendant had left Alice Springs from funds derived from his joint ventures in property in Alice Springs.

In March 1986 the parties purchased a house property at Tea Tree Gully for $82,000. The property was registered in both their names as joint tenants. The purchase was entirely financed by monies borrowed jointly by the parties from the Commonwealth Bank. The plaintiff and the children came down from Alice Springs and the parties lived in the Tea Tree Gully property as their home. The plaintiff took up employment on her return to Adelaide and, apart from a period of twelve to eighteen months in about 1992, she remained employed until the parties separated.

The sale of the Dixon Road property was not completed until June 1987. After the mortgage had been discharged, there was a surplus of $42,543. The house at Tea Tree Gully was not suitable for the needs of the parties and in August 1987 they decided to sell it and buy another house property. They purchased a house at Redwood Park for $168,000. It is unnecessary to examine the details of what the trial judge called "the convoluted transactions" concerning the payment for this property, details which are not entirely clear. The surplus from the sale of the Dixon Road property and the Tea Tree Gully property were applied towards the purchase price. There were loans from Mr and Mrs Koster, as well as a loan from a bank which was secured by a mortgage. The loans to the Kosters were repaid. When the transaction had been completed, there was an outstanding loan to the Commonwealth Bank of $100,000 secured by a mortgage. The property was registered in the names of the parties as joint tenants. In June 1989 the plaintiff borrowed $3,000 to pay for renovations to the kitchen of the Redwood Park property. She repaid that loan.

The accounting practice of Koster, Parij & Co prospered. In June 1989 the practice was sold and the defendant received $150,000, of which about $100,000 was used to discharge the outstanding loan on the Redwood Park property. The defendant then obtained employment with another accounting firm. In early 1989 the plaintiff had a motor vehicle accident in the Mazda 929. The defendant paid $1,500 to satisfy the liabilities of the plaintiff to the driver of the other car. The plaintiff herself borrowed $4,000 to pay for the cost of repairs. In July the Mazda 929 was traded in on the Nissan Skyline motor car, which the parties purchased jointly. The balance of the purchase price was borrowed. The defendant paid 28 of the 36 instalment payments for the purchase of that motor car.

In June 1990 the plaintiff went back into practice on his own account as a public accountant. He purchased a practice and changed the name to Parij & Co. For this purpose he borrowed $270,000 from the Commonwealth Bank, which was secured by a mortgage given by both parties over the house at Redwood Park.

In 1992 and 1993 the parties effected substantial improvements to the Redwood Park property at a total of cost of about $44,000. They borrowed money to finance the cost of those improvements. There were two loans from the Commonwealth Bank secured by mortgages over the Redwood Park property. The loans were repaid by the defendant. At about this time the defendant purchased a boat for about $15,000 and spent monies improving it.

In mid 1993 the defendant obtained $140,000 by factoring the debts of his accounting practice, which he used to reduce the debt owed to the bank for the purchase of that practice and for other purposes. The defendant also paid about $3,800 out of these monies to discharge a loan by the plaintiff from a credit union.

In about mid 1994 the defendant incorporated a company, Rajah Holdings Pty Ltd for the purpose of purchasing a house property at Port Vincent. The price was about $140,000. Of that sum, $116,000 was borrowed from a bank. The defendant purchased a considerable amount of furniture for the house. There is no evidence as to the directors or shareholders of the company. There is no suggestion that any person other than the defendant is a shareholder.

In 1994 the plaintiff, without the knowledge of the defendant, borrowed $10,000 because she was getting behind in payment of her own accounts. She had three horses, the upkeep of which were costing her up to $150 per week.

Towards the end of 1994 the relationship of the parties was deteriorating. In February 1995 the defendant purchased in his own name a house property at St Agnes for $162,000, for which he borrowed $140,000 on mortgage. This became his home after separation. The parties separated on 10 March 1995. After the separation the plaintiff continued to live in the Redwood Park property until it was sold in February 1996.

The Issues

The plaintiff appeals against that part of the decision which holds that she is not entitled to any interest in the defendant's accounting business, the superannuation fund, the house at Port Vincent, his house at St Agnes, his boat and the defendant's Toyota Land Cruiser. I will refer to these assets as "the other assets". The plaintiff had claimed that the other assets were impressed with a constructive trust on the ground that it would be unconscionable for the defendant to obtain the sole beneficial ownership in them. She relied on the principles enunciated in Muschinski v Dodds (1985) 160 CLR 583 and in Baumgartner v Baumgartner (1987) 164 CLR 137, where the High Court has developed the notion of the constructive trust to prevent an unconscionable retention of property to which both parties have contributed either by direct financial contribution or in other ways.

The trial judge held that the plaintiff had not made any direct financial contribution to the acquisition of the other assets. The trial judge did, however, accept that the plaintiff had acted as the primary homemaker and caregiver. Nevertheless, he held that the other assets were not impressed with a constructive trust because she had not made any direct contribution towards the acquisition of the assets. The plaintiff points to the finding by the trial judge that she "did dutifully perform the roles of the primary homemaker and caregiver" and submits that her discharge of that role should be taken into account as an indirect contribution towards the acquisition of the assets other than the family home, car and furniture. She says that the trial judge focused too closely on direct financial contributions and failed to have any regard to non-financial contributions to the acquisition of property in a marriage-like relationship. Thus, she says, the other assets should be subject to a constructive trust by which she gains an interest in them.

The Principles of the Constructive Trust

Given the issues in this case, it is necessary to examine in detail the decisions in Muschinski v Dodds and Baumgartner . As will be seen, the law in Australia has not followed the approach in England in cases such as Gissing v Gissing [1971] AC 886 in which it was held that a constructive trust might be imposed to achieve a fair distribution of property between partners to a personal relationship: see, for example, Allen v Snyder [1977] 2 NSWLR 685 at 692.

In Muschinski v Dodds the court had to examine how land should be divided between former parties to a de facto relationship in circumstances where the presumption of a resulting trust had been rebutted. The majority of the court was not unanimous in the approach it adopted, Gibbs CJ taking a different view of the facts from Mason and Deane JJ. The reasoning of Deane J was later adopted by the majority in Baumgartner . It is, therefore, appropriate to proceed immediately to examine that reasoning.

The facts were that since 1972 Mrs Muschinski and Mr Dodds had been living together in a de facto relationship. In 1975 they decided to buy a parcel of land at Picton on which a dilapidated cottage was erected. They intended to restore the cottage for use by Mrs Muschinski as an arts and crafts centre and to erect a pre-fabricated house on another part of the property in which to live. They purchased the land for $20,000. Mrs Muschinski paid the whole of the price from the proceeds of the same of a house she owned. The property was conveyed to the purchasers as tenants in common in equal shares. The parties had agreed that Dodds would contribute $9,000 from funds available on settlement of his divorce proceedings. For a number of reasons the intended project did not proceed. In May 1980 the parties separated. Dodds made no financial contribution. Applying the equitable principle that restores to a party contributions made to a joint endeavour which has failed, Deane J, with whom Mason J agreed, held that, irrespective of the intentions of the parties, it was appropriate to impose a constructive trust on the house property so that, after payment of any joint debts incurred in the improvement of the property, there would be repaid to each the contribution made, the residue to be divided in equal shares.

Deane J emphasised (at 613) that, in these circumstances, a constructive trust arises regardless of intention. He expressly avoided characterising the constructive trust as either a remedy or an institution, a dichotomy adopted in some discussions he noted at 612-613. He then described a constructive trust (at 614) as

"a remedial institution which equity imposes regardless of actual or presumed agreement or intention (and subsequently protects) to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle."

Although he saw the remedial character of the constructive trust as remaining predominant, Deane J emphasised that the remedy did not provide the occasion for indulging in idiosyncratic notions of fairness, but the question whether a constructive trust exists was to be determined by established principles of equity. At 615, he said:

"The fact that the constructive trust remains predominantly remedial does not, however, mean that it represents a medium for the indulgence of idiosyncratic notions of fairness and justice. As an equitable remedy, it is available only when warranted by established equitable principles, or by the legitimate processes of reasoning, by analogy, induction and deduction from the starting point of a proper understanding of the conceptual foundation of such principles."

He added (at 617)

"Once its predominantly remedial character is accepted, there is no reason to deny the availability of a constructive trust in any case where some principle of the law of equity calls for the imposition upon the legal owner of property, regardless of actual or presumed agreement or intention, of the obligation to hold or apply the property to the benefit of another".

The question then was to identify the relevant principle of equity. Noting (at 617) that no general principle of unjust enrichment operated in this country, Deane J held that the rules entitling a partner in a collapsed joint venture to a proportional repayment out of his contributions was akin to the general equitable notions which find expression in the common law count for money had and received and governing repayment of contributions made where a contract has failed: see 618-619. His Honour expressed the principle in these terms (at 620):

"Those circumstances can be more precisely defined by saying that the principle operates in a case where the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specially provided that that other party should so enjoy it. The content of the principle is that, in such a case, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him so to do."

The guiding principle is, therefore, unconscionability.

Having decided that the circumstances provided the necessary context for the operation of the general principles of the law of equity, and having identified the relationship between the parties in Muschinski v Dodds as being a mixture of the commercial and personal, Deane J examined the principles by which the court should assess the respective contributions of the parties in these terms (at 622):

"The personal relationship provided the context and explains the content of the planned commercial venture. If the personal relationship had survived for years after the collapse of the commercial venture, and the property had been unmistakenly devoted to serve as a mutual home, any assessment of what would and would not constitute unconscionable conduct would obviously be greatly influenced by the special considerations applicable to a case where a husband and wife or persons living in a "de facto" situation contribute, financially and in a variety of other ways, over a lengthy period to the establishment of a joint home. In the forefront of those special considerations there commonly lies a need to take account of a practical equation between direct contributions in money or labour and indirect contributions in other forms such as support, homemaking and family care."

In that case, as the property was not devoted to serve as a mutual home for a lengthy period after the collapse of the planned commercial venture, the parties were entitled to insist upon repayment of the contributions each had made and to a distribution of any surplus in equal shares.

So far as the issues in this appeal are concerned, the significance of the passage just quoted lies in the recognition first that, when determining what is or is not unconscionable conduct, regard will be had to financial and non-financial contributions by the parties and, secondly, that it is expressly stated that indirect contributions or non-financial contributions include support, homemaking and family care. In the particular circumstances of Muschinski v Dodds there was no necessity to have regard to indirect contributions. Although the guiding principle is unconscionability, the means by which a court should determine what is, in the circumstances of a particular case, the "practical equation" between direct and indirect contributions is not expressed in this decision. The reasoning suggests that there is a greater capacity to have regard to indirect contributions where the parties have lived in a de facto relationship for a relatively long time.

Some further guidance as to the relevance of indirect contributions is provided in Baumgartner. In that case the parties had been living in a de facto relationship, with some short periods of separation, for about four years. Both of the parties were employed for the greater part of that time. They pooled their earnings for the purpose of living in the joint relationship. At first they lived in a unit owned by the male partner. That unit was sold and the proceeds were applied towards buying land and building a house which was registered in the name of the male partner. In addition, the parties borrowed monies to buy the land and build the house, the loan being secured by a mortgage in the name of the male partner. The pooled earnings were applied towards the payment of the mortgage and other household expenditure. The court held that it was unconscionable for the male partner to assert that he had the sole beneficial ownership of the house property. The majority held (at 149) that it was proper to regard the arrangement for the pooling of earnings as one which was designed to ensure that their respective earnings would be expended for the purpose of their joint relationship and their mutual security and benefit. To the extent which the pooled funds were the source of payment of mortgage instalments by the female partner, the pooled funds contributed not only to pay accommodation expenses, but also to the security of the parties' accommodation in the future. The majority also held that the contributions of the parties, financial and otherwise, to the acquisition of the land, the building of the house, the purchase of furniture and the making of their home were on the basis of, and for the purposes of, their joint relationship. It was for that reason that the assertion of sole beneficial ownership by the male partner was unconscionable.

The reasons of the majority show that, when determining the terms of the constructive trust, regard will be had to the respective contributions of the parties, contributions which might be either financial or in kind. Mason CJ, Wilson and Deane JJ said (at 149-150):

"It therefore becomes necessary to determine the terms of that constructive trust. The facts that the [house] property was acquired and developed as a home for the parties and that, at least indirectly, it was largely financed out of money drawn from the pool of their earnings, this being one of the purposes which the pool was to serve, combine to support an equality of beneficial ownership at least as a starting point. Equity favours equality and, in circumstances where the parties have lived together for years and have pooled their resources and their efforts to create a joint home, there is much to be said for the view that they should share the beneficial ownership equally as tenants in common, subject to adjustment to avoid any injustice which would result if account were not taken of the disparity between the worth of their individual contributions either financially or in kind. The question which has caused us particular difficulty is whether any such adjustment is necessary in the circumstances of the present case to avoid any injustice which would otherwise result by reason of disparity between individual financial contributions. The conclusion to which we have come is that some adjustment is necessary."

The court held that it was possible to treat the respective financial contributions of the parties as being approximately equal. It did not, therefore, have to consider the effect to be given to a long period of homemaking activity by one partner. However, one of the adjustments made by the court was to credit the female partner with the amount she would have earned during the period of three months during which she was precluded from working by reason of having and caring for a child of the relationship. I infer that was done because of the relatively short period of the relationship and the fact that both parties worked and pooled their incomes during the relationship. It must be noted, however, that the majority did emphasise (at 150) that the court should "where possible, strive to the effect of the notion of practical equality, rather than pursue complicated factual inquiries which will result in relatively insignificant differences in contributions and consequential beneficial interest".

These decisions establish in unambiguous terms that, when determining whether it is unconscionable for one party to a de facto relationship to retain the sole beneficial ownership of property acquired in the course of the relationship, regard will be had to the manner in which the parties have conducted their relationship and the contributions each have made. When assessing their respective contributions, regard will be had to non-financial contributions as well as to financial contributions. The latter proposition is clear from the references to the "practical equation between direct contributions in money or labour and indirect contributions in other forms such as support, homemaking and family care" in Muschinski v Dodds at 622 and in the reference to "contributions either financially or in kind" in Baumgartner at 150.

The principle that regard will be had to non-financial contributions when considering the division of property on the dissolution of a marriage has been affirmed on more than one occasion: see Mallet v Mallet (1984) 156 CLR 605 per Mason J at 623 and the cases there cited. In that passage Mason J noted that a wife's contribution as a homemaker should be recognised in a substantial, and not merely token, way, this being a recognition of the fact that, by her attention to the home and the children, the wife frees her husband to earn income and acquire assets: see also Deane J at 640 and Dawson J at 646. These observations were made when considering the effect of s79 of the Family LawAct , 1975 (Cth), which directs the Family Court, when altering interests in property, to have regard to the contribution made in the capacity of homemaker or parent. That principle was reaffirmed by Mason CJ, Deane and McHugh JJ in Singer v Berghouse [No2] (1994) 181 CLR 201 at 212-213 in these terms:

"As recent cases in this Court have made plain (eg Mallet v Mallet (1984) 156 CLR 605 at 623), it is important that the Courts do not disregard or discount the non-financial contributions made to the property and finances of the party to a marriage or marriage-like relationship, such as the contributions made by parties as homemakers and parents, which are not directly productive of a monetary return."

As I understand them, these remarks have a general application and are not, as the trial judge believed, limited to claims for what used to be called testator's family maintenance. That is evident not only from the manner in which the observations were made but, in particular, by the reference to Mallet . The reference to recent cases stating that non-financial contributions are relevant in marriage-like relationships is plainly a reference to Muschinski v Dodds and Baumgartner. Thus, Singer v Berghouse affirms the authority of those decisions.

In this case, the trial judge rejected the plaintiff's contention that the other assets were impressed by a constructive trust, holding that the decisions in Muschinski v Dodds and Baumgartner did not authorise the imposition of a constructive trust upon assets of the defendant where the plaintiff had made no financial contribution and could only point to performance of the roles of primary homemaker and caregiver. For the reasons already given, the trial judge misunderstood the reasoning in Muschinski v Dodds and Baumgartner . The High Court has expressed a general principle and the application of that principle will vary according to the facts of each case. He has erred in rejecting the plaintiff's contention that regard should be had to her role as primary homemaker and caregiver when determining whether the other assets might be impressed with a constructive trust in her favour. It is, therefore, necessary for this court to determine that question.

At the risk of repetition, I summarise the effect of the findings of the trial judge as supplemented by the evidence of the defendant. When they first lived together, the parties had no assets other than the defendant's Holden motor car. The defendant then had a substantial liability to the creditors of his failed hotel business. In the course of their life together that liability was discharged and a number of substantial assets were acquired. The parties lived together as husband and wife for almost seventeen years before they separated in March 1995. The plaintiff gave the appearance of being the defendant's wife and, on occasions, the defendant held her out as his wife. There were two children of the relationship. In addition, the plaintiff's child of a previous union lived with and was cared for by the plaintiff and defendant. Towards the end of the relationship, the household also included the defendant's son from his previous marriage.

The parties did not pool their resources in any formal sense. They did not operate a joint bank account. However, it is apparent that, throughout their time together, the parties both contributed funds to discharge different aspects of family expenditure. For the greater part of the period of the relationship, both in Alice Springs and in Adelaide, both parties were employed, although, for most of that period, the defendant earned a substantially higher income than the plaintiff. There were periods in Adelaide when the plaintiff worked long hours in two jobs. She worked as a process worker until mid-afternoon and then worked in a video shop. In addition to her employment, the plaintiff performed the roles of homemaker and caregiver for the defendant and the three children. The defendant paid all electricity, telephone, rent and, later, mortgage accounts. Other household and incidental expenditure was paid by both the plaintiff and defendant with no rigorous division of responsibilities, the funds coming from housekeeping money paid by the defendant and part of the income earned by the plaintiff. When employed the plaintiff purchased the food and other provisions for the family. The defendant gave her some additional money for housekeeping. On two occasions the plaintiff borrowed small amounts of money for the purpose of effecting improvements to the home, and repaid most of those loans. On some other occasions, when the plaintiff had borrowed money, the defendant repaid the greater part of the loan. The parties each retained part of their individual income for their own benefit. I do not think that is a matter of great moment, as both contributed, albeit according to the size of their respective incomes, to household expenditure. A pooling of resources is not an absolute requirement in every case: Hibberson v George (1989) 12 Fam.L.R. 725 (Court of Appeal, NSW); Miller v Sutherland (1991) 14 Fam LR 416.

The defendant obviously worked hard and for long hours in his accounting businesses, first in partnership with Koster and later as a sole proprietor, and he profited from his industry. However, it is reasonable to infer that he was able to work these long hours because he knew that the plaintiff was caring for the children and the house. It is apparent that the defendant recognised the plaintiff's support. On 1 July 1990 he established a superannuation policy naming the plaintiff only as the beneficiary. Although his evidence was that the policy was intended to enable her to meet financial obligations on his death, it is clear that he intended to provide for her on his death. In 1993, when the relationship was not as happy as at earlier times, the defendant rolled the policy over into what was called the "Parij Retirement Fund" in which he was the sole beneficiary. At that time the funds stood at $8,391.

When the parties were living in Alice Springs, the defendant had investments in his own name. The plaintiff knew generally of those investments, but only in broad terms. The evidence does not indicate whether she expressed any desire to have an interest in them or whether she was content that the defendant would accumulate some investments for his sole use and benefit. The proceeds of those investments were used to assist in the repayment of the loan to Sitzler Brothers.

The parties lived together for almost 17 years in a de facto relationship. The trial judge found that they were generally a loving and devoted couple until the relationship began to deteriorate about a year before the separation. The plaintiff made a financial contribution to family expenditure, although that financial contribution was not as great as that of the defendant. In addition, the plaintiff has performed the roles of homemaker and caregiver for the defendant and the children throughout the period of their relationship. For these reasons, I think that it would be unconscionable for the defendant to retain all of the other assets. I turn to the question of determining the terms of the constructive trust.

The Terms of the Constructive Trust

The guidelines relating to an assessment of the contributions of the parties to a dissolved marriage are now relatively well established. They are guidelines only and do not fetter the discretion of the court: Mallet at 608-609; Norbis v Norbis (1986) 161 CLR 513 at 533 per Wilson and Dawson JJ. Those guidelines have been developed in respect of the exercise by the Family Court of the discretion under s79 of the Family Law Act to make such order as the court considers appropriate. Those guidelines have been held to be of some assistance when, at the conclusion of a de facto relationship, property is divided under the De Facto Relationships Act , 1984 (NSW): see Black v Black
(1991) 15 Fam.LR 109. Although those guidelines are not to be applied uncritically in respect of de facto relationships, assistance can be gained in respect of problems common to both enactments: Black at 113. At the time the parties to this action separated in 1995, the De Facto Relationships Act , 1996 of this State had not been passed.

The question arises whether, for the purpose of determining the terms of the constructive trust, this court should take from guidelines which have been developed by the Family Court for the purpose of division of property under s79, those guidelines which are appropriate. It is not, of course, necessary to establish unconscionability in order to invoke the separate jurisdiction to divide property under the Family Law Act and the De Facto Relationships Act in New South Wales. That does not, I think, have the consequence that courts should not, when assessing the respective contributions, apply relevant guidelines developed under that legislation while recognising at the same time the differences between the respective jurisdictions. The principles expressed in Muschinski v Dodds and in Baumgartner and, in particular, the injunction in Muschinski v Dodds to determine "a practical equation between direct contributions in money and labour and indirect contributions in other forms such as support, homemaking and family care", and the observations of the High Court in Singer v Berghouse require the court to have regard, albeit in a careful and critical manner, to relevant guidelines developed under the above legislation. If such an approach is not adopted, there is no basis for assessing the contributions of the parties other than by reference to direct contributions. In some cases, it may be possible to find a monetary equivalent to non-financial contributions. Baumgartner is an instance. In other cases, such as Miller v Sutherland , it will be possible to have regard to a pooling of labour. The more difficult task is assessing the contribution of a wife as homemaker and caregiver. The guidelines developed when exercising such jurisdictions as s79 of the Family Law assist. Such an approach is consistent with the change in community attitudes in recent years to the institution of marriage, the acceptance of de facto relationships, and the community's recognition and acceptance of the fact that, as with the dissolution of marriage, so with the dissolution of a de facto relationship there might be consequential division of property.

In my view, the following guidelines are relevant in this case. First, even in cases involving a relatively long marriage, there is no presumption that equality is equity: Mallet at 613, 625, 635-6, and 646-7. In other words, it is necessary to examine the facts and circumstances of each case. That examination may lead to a determination that there should be equality, but equality is not the starting point. Secondly, substantial, not token, regard should be had to the contribution of the partner who is the homemaker and caregiver: Mallet at 609, 623, 636, 646 approving Evatt CJ in Rolfe (1977) 34 FLR 518 at 519. Thirdly, as a general rule, the domestic activities of one partner may properly be regarded as contributing towards the acquisition of property by the other partner through his or her business activities: Ferraro
(1992) 111 FLR 124 at 157, 169-170. The rationale lies in the fact that the performance of domestic duties by one partner frees the other from domestic responsibilities to work directly for financial reward.

When determining the respective contributions of the provider and the homemaker, it is not appropriate in every case to make a detailed analysis of the quality of performance by each partner of their respective roles in the relationship. So in Shewring (1987) 12 Fam. LR 139 at 141 the court said:

"The assessment of the quality of the contribution should be based on the principle that each party should make such contribution as can be reasonably expected having regard to the nature of the parties' capacity, the ability of each of the parties and expectations of the spouses."

Thus, where the parties have acted in what might be the normal range of roles no detailed assessment is either called for or is appropriate: Ferraro at 161. Like observations were made in Black at 117-118 which concerned the division of property upon the separation of parties who had been living in a de facto relationship.

"In order to evaluate the particular contribution the court is, in my opinion, required carefully to examine the role played by the person who claims to have contributed as a homemaker and parent. Obviously, where a woman has, over a long period, assumed virtually all the responsibility of maintaining the home and bringing up the children, has done so in a responsible and energetic manner, and has devoted most of her time to doing that and thus freed her partner to earn income to be used for the general betterment of the family, her contribution would have to be regarded as substantial and significant. Whether her contribution should be regarded as less than, equal to, or greater than the financial contribution by the wage-earning partner must depend upon the circumstances of the case, which will undoubtedly include the length of the relationship, the nature of the wage-earner's contributions and the care, devotion and services of the homemaker."

In the case of the partner working for financial reward, regard will be had to the extent to which business, professional or entrepreneurial skills or business acumen of that partner have contributed to the income. But even where there has been a high level of professional skill coupled with a picture of long hours of work over many years, the resultant imposition on the other party of a substantial extra burden in relation to the home is not to be disregarded. In those cases where industry or skill have produced the assets which fall within what might be described as a medium range, other aspects being equal, the general approach is to approximate equality: Ferraro at 170-171; Mallet at 625, 646-7.

There can be no doubt that the plaintiff's assistance enabled the defendant to prosper in his business. In addition, when it was necessary to borrow money, the family home at Redwood Park was used as security. Although the previous mortgage on that property had been discharged in part from the proceeds of the sale of the defendant's interest in Koster Parij & Co, I do not agree with the trial judge that the registration of the mortgage was merely a mark of gratitude by the plaintiff. That mortgage was also discharged in part by the proceeds of the sale of two earlier homes occupied in the course of this relationship. Had the business failed, the family home at Redwood Park would, in all likelihood, have been sold to satisfy the loan secured by the mortgage. The parties have lived together as man and wife for 17 years and, for the greater part, as a happy and devoted couple. The plaintiff has, when in Adelaide, made a substantial contribution to the business by acting as the primary carer for the family and by freeing her husband to pursue his professional activities. The position in Alice Springs was a little different in that the defendant, who was then employed and not running his own business, would on occasions look after the children when the plaintiff was working at weekends. Her assistance has enabled the defendant to accumulate a number of substantial assets. Recognition must also be given for the long hours and industrious application by the defendant to his business which appears to have mainly occurred following the return of the parties to Adelaide in 1986. In the end, I think that the defendant's contribution should be assessed as greater than that of the plaintiff.

There are two reasons why I do not think it desirable that this court should remit the matter for determination to the trial judge. In some cases, the equity in the assets is not substantial. In others, the assets themselves are not substantial. For example, the equity in the houses at Port Vincent and StAgnes is relatively small. The time and cost involved in investigating these issues would outweigh the benefit. I, therefore, assess the contribution of the wife to the business as being one third, so that she would be entitled to one third of the value of the business. However, as the value of the business was not proved, it is necessary to remit the matter for inquiry as to its value.

The profits derived from the business have in large part provided the funds by which the other assets were acquired. Without objection from the plaintiff, the defendant has always owned a motor vehicle in his own name. At the beginning of the relationship he contributed a motor vehicle which he then owned. It is not unconscionable, therefore, for the defendant to retain the sole beneficial ownership in the Toyota Land Cruiser owned by him.

The value of the boat was not proved. It was purchased in about 1992 or 1993 for about $15,000. The plaintiff knew of that purchase but did not involve herself in any way with the boat. It can, I think, be fairly regarded as part of the recreational pursuits of the defendant. Its capital value is not particularly large. It is not unconscionable in all the circumstances for the defendant to retain the sole beneficial ownership.

The plaintiff's evidence was that the house property at Port Vincent was purchased as a family holiday home. It was common ground that the plaintiff and the defendant looked at two houses at Port Vincent, including this house, before deciding to purchase it. It had been used once by the family for holiday purposes. The defendant admitted that the house had been purchased as a holiday home for the family but said that was not the only purpose. He said it was also intended as an investment. Because the house was purchased with the proceeds of the business, it is appropriate to go behind the corporate structure and examine the source of funding which represents the equity in the house. There is much to be said for the view that the plaintiff should have a share which equates to her interest in the business, namely, a one third share in it. In order to increase that interest to 50 per cent, it would be necessary for the plaintiff to show some contribution over and above caring for the family at Redwood Park by, say, taking an active part in the management and care of this house. As she had not done so, there is no justification for holding that she is entitled to any more than a one third interest in it. Like considerations apply in respect of the house at St Agnes, particularly as the defendant had purchased it not long before the separation as his future residence. It is no doubt possible for the parties to arrange monetary settlement without the necessity of selling those assets.

As the trial judge refused the plaintiff's application to amend her Statement of Claim, the evidence concerning the superannuation fund is slight. What is clear is that a superannuation policy was initially taken out to benefit the plaintiff. When the relationship began to sour, the defendant rolled it over into a fund which appears to be for his sole benefit. There is little evidence concerning the nature of the policy or its terms. There is no evidence whether any benefit could be paid before retirement. There is also the difficulty of determining the present value of the fund payable on retirement. The relevant principles are gathered in Dickey, Family Law (3 rd edition) at 616-617 and 704-706. Although the principles there expressed apply on the dissolution of a marriage, they are, for the reasons already given, relevant when determining whether the superannuation fund should be subject to a constructive trust. It is, therefore, necessary to remit the matter for inquiry as to the relevant facts.

The plaintiff also claims an inquiry into the loan by the defendant's business to Rajah Holdings Pty Ltd. It is shown as an asset of the business. On its face, this claim constitutes double compensation since the plaintiff will be entitled to an interest in the business which will include that asset. The conclusion of double compensation is reinforced if the loan has been applied to the purchase of the Port Vincent house or the furniture in it. I would not allow this claim to be pressed.

The Failure to Allow the Amendment

I have not so far dealt with the refusal of the trial judge to allow the plaintiff's application to amend her Statement of Claim. The application was made on 7 June 1996, the first day of the trial. The defendant had been given a copy of the proposed amendments the day before. The defendant opposed the application. After relatively short argument, the hearing of the application was adjourned to 11 June, the next day of the trial, to enable the plaintiff to formulate the proposed amendments more precisely.

Although the amendments were extensive, they did not alter in any substantial way the factual allegations. The amendments fell into a number of categories. Some corrected typographical errors or were otherwise of a minor nature. They could not have embarrassed the defendant. Quite a number provided particulars of existing allegations or otherwise improved the pleading in the Statement of Claim. They would have assisted, not hindered, the defendant in the presentation of his case. The significant amendment was the inclusion of paragraph 31A which pleaded the grounds on which the plaintiff asserted her claim to share in the assets the subject of the action. They were pleaded in the alternative. She said that the parties had made equal contributions towards the acquisition and improvement of assets and, alternatively, that it was unconscionable for the defendant to assert his entitlement to the assets. In the course of arguing the application, counsel for the plaintiff made it clear that he was relying on the principles in Muschinski v Dodds and Baumgartner . In her original Statement of Claim the plaintiff had claimed an order for the sale property at Redwood Park and a payment to her of one half of the proceeds of sale, a declaration that the defendant held the house property at Port Vincent on trust for the plaintiff and defendant, division of all items of personal property acquired by the parties during their cohabitation and an account of all monies received by the defendant to the use of the plaintiff in connection with his accounting business. There were claims for other incidental orders. The grounds upon which the plaintiff sought those orders were not disclosed. The amendment specified those grounds and thus, would have assisted the defendant in presenting its case. The amendment provides specific grounds for the claim which were absent from the original Statement of Claim.

The trial judge refused the application for two main reasons. The first was that the claim by the plaintiff to an interest by reason of her work as a housekeeper and caregiver during the course of a long relationship with the defendant was not a substantial point and it would not be unjust if the plaintiff's application to amend were refused. He acceded to a submission on behalf of the defendant that the amendment did not disclose a reasonable cause of action. Secondly, he referred to the need of the District Court to maintain its caseflow management system. For the reasons already expressed, the trial judge was wrong in holding that the proposed amendments did not disclose a reasonable cause of action and there would be no injustice in denying the plaintiff the ability to amend. It follows that the judge was, therefore, wrong in refusing the amendment and the appeal against his refusal should succeed. If the amendment was perceived to embarrass the defendant, the appropriate course would have been to have granted an adjournment. Caseflow management is not an end in itself. It is an important and useful aide for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind that the ultimate aim of a court is the attainment of justice, an aim not to be supplanted by any caseflow management principle: Queensland v J L Holdings Pty Ltd (1997) 71 ALJR 294 per Dawson, Gaudron and McHugh JJ at 296.

The New Orders

For all of these reasons, the appeal should be allowed. The order of the trial judge should be varied. I agree with the order of Cox J save that I would declare that the plaintiff has a one third interest in

(a) the business of the defendant known as Parij & Co;

(b) the house property at 10 South Street, Port Vincent in the State of South Australia and all of the furniture in the said house;

(c) the house property at 10 Sarnia Farm Road, St Agnes in the said State.

The trial judge concluded by commenting on the following passage in Singer v Berghouse (1994) 181 CLR 201 at 213:

"As recent cases in this Court have made plain (eg Mallet v Mallet (1984) 156 CLR 605 at 623), it is important that the Courts do not disregard or discount the non-financial contributions made to the property and finances of the party to a marriage or marriage-like relationship, such as the contributions made by parties as homemakers and parents, which are not directly productive of a monetary return."

The trial judge said:

"That was stated in a case dealing with the New South Wales equivalent of the Inheritance Family Provision Act and there is no reference in the judgments to any constructive trust. I do not consider that it is authority for the proposition that non-financial contributions as homemakers and parents are to be taken into account in constructive trust cases to any greater extent than is justified on the authorities directly relating to constructive trusts . Accordingly, I hold that the plaintiff has no claim in equity to these other assets of the defendant. I will hear the parties on the precise order to be made."

The meaning of the emphasised words is not entirely clear. However, given the juxtaposition of those words with the reference to Mallett v Mallett , I understand the trial judge to be concluding that non-financial contributions are not to be taken into account when determining whether a constructive trust should be imposed.

The following principles can be extracted from the decisions in Muschinski v Dodds (1985) 160 CLR 583 which were adopted by Mason CJ and Wilson and Deane JJ in Baumgartner v Baumgartner (1987) 164 CLR 137:

1. "There is a general equitable principle which restores to a party contributions which he or she has made to a joint endeavour which fails when the contributions have been made in circumstances in which it was not intended that the other party should enjoy them.": Baumgartner v Baumgartner at 148.

2. "The constructive trust can be properly described as a remedial institution which equity imposes regardless of actual or presumed agreement or intention (and subsequently protects) to preclude the retention or assertion of beneficial ownership of property to the extent that such retention or assertion would be contrary to equitable principle.": Muschinski v Dodds (supra) at 614.

3. "Thus the constructive trust arises regardless of intention": Muschinski v Dodds at 613.

4. "The fact that the constructive trust remains predominantly remedial does not, however, mean that it represents a medium for the indulgence of idiosyncratic notions of fairness and justice. As an equitable remedy, it is available only when warranted by established equitable principles, or by the legitimate processes of legal reasoning, by analogy, induction and deduction from the starting point of a proper understanding of the conceptual foundation of such principles": Muschinski v Dodds at 615.

5. "Once its predominantly remedial character is accepted, there is no reason to deny the availability of a constructive trust in any case where some principle of the law of equity calls for the imposition upon the legal owner of property, regardless of actual or presumed agreement or intention, of the obligation to hold or apply the property to the benefit of another": Muschinski v Dodds at 617.

6. "It is necessary to determine the nature of the joint endeavour and the relationship of the parties": see Muschinski v Dodds at 620-622. It might be commercial, it might be personal, or a mixture of personal or commercial."

7. "If the parties are husband and wife or have been living in a de facto relationship, any assessment of what would and would not constitute unconscionable conduct should have regard to the special contributions made by the parties in the period of the relationship. In this respect, there is commonly a need to take account of a practical equation between direct contributions in money or labour and indirect contributions in other forms such as support, homemaking and family care": Muschinski v Dodds at 622.

So, in Muschinski v Dodds , the relationship was held to be a mixture of commercial and personal. The personal aspects of the relationship affected the commercial so that the joint property was subject to a constructive trust. Each party was able to insist upon repayment of the contributions each had made and distribution of any surplus in equal shares. By contrast, in Baumgartner v Baumgartner , regard was had to the fact that the parties had pooled their earnings for the purpose of living in a joint relationship as a de facto couple. Thus, it was unconscionable for the male partner, who was the registered proprietor of the house property financed by their pooled funds, to assert that he had the sole beneficial ownership. When assessing the respective contributions of the parties, credit was given to the female partner for a period when she was precluded from working by having and caring for a child of the relationship: see Mason CJ, Wilson and Deane JJ at 150; Gaudron J at 157.

The passage in Mallett v Mallett approved by the unanimous High Court in Singer v Berghouse was from the judgment of Mason J, in which His Honour noted that a wife's contribution as a homemaker should be recognised in a substantial and not merely in a token way. Those observations were made when considering the effect of s79 of the Family Law Act , 1975 (Cth), which directs the Family Court, when altering interests in property, to have regard to the contribution made in the capacity of homemaker or parent. As I understand them, the remarks in Singer were not intended to be limited to claims for what used to be called testator's family maintenance, but had a more general application. That is evident from the manner in which the observations were made and, in particular, by the reference to Mallett , which concerned the operation of s79 of the Family Law Act.

The house property at Port Vincent does not, I think, fall into the category of an investment for the sole benefit of the defendant. It was common ground that the plaintiff and defendant looked at two properties at Port Vincent and decided to purchase the property now owned by the company Rajah Holdings Ltd. In his evidence, the defendant agreed that the property was purchased as a family holiday house, but said that that was not the sole intention: 218. He also intended to use it as an investment. It was the plaintiff's evidence that it was intended to be a family holiday home. It was used for the family on one occasion.

The trial judge reached this conclusion by deciding that the parties had a common intention that they should equally own the family home, the furniture in it and the car used by the plaintiff, regardless of their respective financial contributions in the acquisition of those assets: Calverley v Green . This common intention displaced the resulting trust claimed by the defendant. His decision that the plaintiff had no interest in the accounting business, the house at Port Vincent, the house at St Agnes, the boat and the Toyota Land Cruiser was grounded on the fact that the plaintiff made no monetary contribution to the acquisition of those assets. The reasoning does not sit easily with his finding that the intention of the parties displaced the resulting trust claimed by the defendant in the house property at Redwood Park. What the judge failed to examine was the intention of the parties in respect of those other assets. I think that, had he done so, he would have concluded that there was a common intention that at least the house property at Port Vincent should be an asset held beneficially for the plaintiff and defendant.

It was open to the trial judge to adopt one approach and to determine the extent to which, if at all, the assets should have a constructive trust imposed upon them. All of these assets were acquired during the de facto relationship. When they first lived together, the parties had no assets. In fact, the defendant had what was in 1978 a substantial liability to his creditors. In the period in which they lived together a number of assets had been acquired, some of which were registered in their names as joint tenants.