Brisbane’s Legal Lowdown: Are you in a de facto relationship? What you need to know if you split

Sofie: It is time for our legal lowdown with Atwood Marshall lawyers, and today we’re talking about de facto relationships. What the law says, what happens when relationships end, why social media can sometimes become a key piece of evidence if there is a dispute from proving whether a relationship ever existed to sorting out who gets what when it ends, and whether or not just an innocent, let’s just live together, can cause some serious complications very quickly.

We’re being joined now on Afternoons with Family Law Special Counsel, Hayley Condon joining us from Attwood Marshall Lawyers. Nice to see you again.

Hayley: Thank you, Sofie. Good afternoon to you and your listeners.

Sofie: I think de facto relationships have certainly changed a lot given the pressures that people have on being able to find somewhere to live that’s affordable and often, especially very young relationships, whether they be young in age or young in time, will go well, we’re spending all this time together anyway why don’t we just cohabitate? And essentially when you start that process, you’re in a de facto relationship?

Hayley: Generally, the short answer is yes.

To try and define what a de facto relationship is is very difficult and there are cases before the court every day where people are in dispute about whether they were in a relationship or not.

There is certain criteria under the Family Law Act that a court will look at to determine if a de facto relationship exists. And it’s really the extent to which you’ve merged your lives as a couple. And generally starting to live together under the one roof where you’re sharing household expenses, sharing a bed, sharing a life together, tends to start that time clock.

Sofie: Interesting. Because I think many of us may have fallen into maybe what’s an antiquated kind of assessment of it, which is, I always thought it had to be a year that had passed before i would have any sort of sticking power. Not so?

Hayley: No. You are right, Sofie. So, when a de facto relationship breaks down, a de facto partner doesn’t have this automatic right to make a claim to a property settlement or spousal maintenance. The relationship does have to meet certain criteria to be able to make a claim.

So you’re right, there is a time limit. The total period of the relationship has to be at least two years. If you can’t show that, then is there a child of the relationship? Is the relationship registered under a prescribed law of a state or territory? Or has the party made what we call a significant and substantial contribution, generally financial.

Sofie: What do you mean to have your relationship recognised by a prescribed, what did you say

Hayley: Prescribed law of a state or territory.

So, I’ll give you a prime example. Prior to same sex marriage, people who are in a same-sex relationship and they want to recognise that relationship would go off and have their relationship registered. Now that’s obviously open to any type of couple, but that’s what we’re talking about there.

Sofie: Okay. Wasn’t aware of that. Is there a massive misconception that you see that people have when it comes to what they’re entitled to if a de facto relationship fails, and they break up?

Hayley: Absolutely. I often hear when people walk through my door and sit down, I’m entitled to 50 per cent, aren’t I? That’s simply not the case. We don’t have any prescribed percentages in Australia as to what a person is entitled to. Let me tell you, if there was a lovely chart in the Family Law Act, which said this many years, this amount of money contributed, here’s your percentage, it would be very, very easy. But unfortunately, that’s simply not the case, and it comes down to those little things called contributions and future needs.

Sofie: I imagine that as much as there is assets that may need to be considered, there’s also many times debt. There’s a lot of people in de facto relationships who will go into debt together.

Hayley: They do. It’s a very sad time that we’re seeing at the moment, obviously, with the economy, cost of living. And, I will see cases at times where all there actually is to divide is debt, and how much debt the parties will walk away with.

Sofie: Yeah, extraordinary stuff. And, you know, I think there’s that added complication then if there’s children involved and whether or not there’s any spousal maintenance that would be available in that scenario with a de facto couple, all of those things would need to be taken into consideration. So, if people don’t, you know, legally marry for whatever reason, in any combination of partners that it may be. If you are entering into a de facto relationship and you know you are, are there any protections that you should consider then?

Hayley: Well, there are. There is the option, and I’ll use this scenario where it might be a second, third or plus relationship, where the de facto partners separately are established in life. They’re coming together and they might want some protection around what they’re bringing into the relationship in case that relationship doesn’t work out. So, there is the option of entering into what’s called a financial agreement under the Family Law Act.

Essentially, what the de facto couple is doing, is they’re agreeing upon terms either before they start that commitment and that relationship, or during the relationship, to outline what will happen in terms of property division if they were to separate in the future. The idea being to make the separation process more streamlined and to take that emotion and sting out of it later on.

Sofie: Kind of like a prenup, but without the nup.

Hayley: Pretty much. Without the ring.

Sofie: Without the ring! What about situations where one person says, yeah, we’re in a long-term relationship, and the other one says, no, we weren’t really, not as far as I was concerned because I didn’t view it in the same way that he or she did?

Hayley: That happens frequently, probably more frequently than what you think.

Sofie: Is that when social media comes into it and someone goes look, I’ve got all of these photos of us together and videos of our holidays and receipts that we, you know, all that sort of stuff?

Hayley: You have got it. All I can say is people need to be very, very careful what they post and how much they share on Facebook and other social media platforms, because in situations like that, for example, let me tell you, it is a treasure trove for a lawyer trying to build a case.

Sofie: Photographs from holidays, dining out, couples looking loved up, all of those sorts of things?

Hayley: Exactly right. Or for example, what I’m seeing, and this is something people really need to be careful of, is they’re using these platforms to vent or to share very personal information or monologues about their relationship or their former partner after the relationship breaks.

The reality is these communications are not private, and you need to be very careful that they could end up as court evidence to support a domestic violence application.

Sofie: Wow. Yeah. Never even considered that as a thing. And you’re right. People can do that because they’re frustrated and they’re feeling like they need to vent and they want support from their team and their side, and you do see that occasionally that people will take to a platform to just let it all out.

Hayley: They do. It’s like the online diary. But the problem is the online diary doesn’t come with a lock.

Sofie: No. Absolutely. Everyone’s got a key is really what you’re getting at.

Has there been any example that you can share with us, Hayley, where at the end of the day, people may come with an expectation of what they feel like they’re entitled to, or whatever the case and actually once you get an understanding of the law, everyone simmers down a little bit and you’re able to sort of go on with your life in your separate ways. Or is it more often than not, by the time people are in front of you and having these conversations, were already in sort of nasty territory where things are getting really complicated?

Hayley: Not necessarily, because I think how the relationship breaks down and the circumstances surrounding that breakdown can certainly impact the trajectory of resolution. If, for example, let’s say people have just grown apart, let’s say the children are older.

Sofie: There’s no third party involved, right?

Hayley: That’s exactly where I was going. So, there’s less emotion there. Then no, sometimes people come in and they’re just looking for information on how to resolve matters, to understand what their entitlement might be and to try and do it amicably. But yes, when third parties are involved and there’s a lot of hurt emotions, then yes, things can get rather acrimonious.

Sofie: So, I guess if someone’s listening to this, I don’t know, say a parent who’s got kids in their 20s who are starting to move out on their own and who are living with a partner. Is there any advice that you would give in that way?

Hayley: In terms of potentially a financial agreement, it really comes down to what that particular person has by way of assets to begin with. If they are starting out in life and perhaps have car and personal belongings, and debt, yes, credit card debt. It’s not such of a big issue because these people are trying to make a life together.

But if you’re coming in with some substantial assets, you might like to get some advice around entering into a financial agreement to provide an element of protection.

And if it’s a situation where that person is separating, the first step is always to get advice. Get some information. Be armed with that and then you can work out how you want to move forward.

Sofie: It sounds like then at the other end of the scale, if you’re talking about people who are well into life, established with or without children of their own, assets, and all of those sorts of things, the advice would be to have a real think about what the situation might look like if you live together for a little while, things don’t work out and you each want to go your own way. That’s when you come and have a conversation with someone like you.

Hayley: Exactly right. You know, you might start a relationship with somebody, when it’s starting to get serious and you think there is a future, that’s the time to get some advice.

Sofie: And you can get that advice from Attwood Marshall. They are there, all of them, including Hayley, who is the Family Law Special Counsel at Attwood Marshall Lawyers.

Thank you so much, Hayley, for being with us again.

Hayley: Thank you, Sofie. Pleasure.