Attwood Marshall Lawyers Family Lawyer, Emily Edmonds, discusses the breakup of Kim Kardashian and Pete Davidson, and how de facto couples can protect their financial interests.
Introduction
When it comes to the ins and outs of celebrity relationships, keeping up with the Kardashians is never easy.
In 2021, Kim Kardashian put an end to her drawn out divorce proceedings with Kanye West, although the property settlement and custody agreement is yet to be finalised, which will determine how their shared $2.1 billion asset pool will be divided. Kim and Kanye had a prenuptial agreement, so the property settlement should be relatively drama-free, even if the divorce was not.
As Kim navigated her divorce proceedings, she embarked on a new relationship with Pete Davidson, which after 9-months, has also come to an end. Now lies the question, will Pete be able to access any of Kim’s wealth as they go their separate ways, or was there a financial agreement in place from the start?
It’s important to understand what someone may be entitled to when a de facto relationship comes to an end in the eyes of the law. Although what law applies in the USA will vary from Australia, let’s take a look at what this break-up would mean under Australian Law.
De facto relationships and Australian Law
In Australia, the Family Law Act 1975 defines a de facto couple as ‘persons not legally married to each other, not related by family, and have a relationship as a couple living together on a genuine domestic basis’.
In determining the existence of a de facto relationship, the Court will consider the following:-
- The duration of the relationship;
- The nature and extent of their common residence;
- Whether a sexual relationship exists;
- The degree of financial dependence or interdependence, and any arrangements for financial support, between them;
- The ownership, use and acquisition of their property;
- The degree of mutual commitment to a shared life;
- Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
- The care and support of children; and
- The reputation and public aspects of the relationship.
Being in a de facto relationship with someone does not automatically entitle you to make a claim for a property settlement if that relationship breaks down.
In order to be eligible to make a claim for a property settlement, you need to have been in that committed relationship for at least two years. That doesn’t necessarily mean two consecutive years, it can be the total period of the relationship.
Given Kim and Pete’s fleeting romance only lasted nine months, under Australian Law, he would unlikely be eligible to make a claim on her property.
If the total period of a relationship is less than two years, there are still certain circumstances where someone can make a claim. These include:
- if the relationship is registered;
- if they couple have a child together; or
- if one party has made a significant contribution to the relationship, normally financial, and the other party would suffer financial hardship if the court didn’t make a property settlement order in their favour. (Given that Pete Davidson’s net worth is estimated to be $8 million, he is not exactly suffering financial hardship having split from Kim.)
It is also important to note that a de facto relationship can exist between two persons of different sexes and between two persons of the same sex in the eyes of the law. A de facto relationship can exist even if one of the persons is legally married to someone else or is in another de facto relationship.
Protecting your financial assets in a de facto relationship
If you are in a de facto relationship, or are getting to the point in your relationship where you think you and your partner may be classified as a ‘de facto couple’ by law, it is always important to consider entering into a Financial Agreement.
A Financial Agreement (sometimes referred to as a ‘Pre-nup or Prenuptial Agreement’) may be entered into before the commencement of, or during a de facto relationship. These agreements set out how, in the event of the breakdown of the relationship, property and financial resources are to be dealt with and distributed.
The Financial Agreement can also include provisions in relation to spousal maintenance. A Financial Agreement will not only formalise your intentions in relation to your property, but it will assist in resolving any issues that may arise, should your de facto relationship come to an end.
Some people may not see the value in incurring costs to have a Financial Agreement drafted, but there is a possibility that leaving things to chance may end up costing a lot more. Not all relationships end amicably, despite having the best of intentions.
Having a Financial Agreement in place will assist in a prompt resolution of family law matters should a couple separate, which will not only save significant money in terms of legal costs, but will also reduce the emotional stress that such matters can evoke.
In order to enter into a Financial Agreement that will be recognised by the court, a number of requirements need to be met. First and foremost, each party needs to obtain independent legal advice. The document also needs to be signed by each party, freely and of their own volition.
Entering into a Financial Agreement when a de facto relationship comes to an end is also an option.
In these circumstances, a Financial Agreement can bring your financial relationship to an end and formalise any agreement between your ex-partner and yourself. Again, this course of action is preferable to commencing legal proceedings which can be extremely costly and may be drawn out over months and years.
If you are a party to a de facto relationship that has broken down, and it has been longer than two years since you and your partner separated, a Financial Agreement may be the only way in which you can resolve your family law property matters. This is due to the fact that as a party to a de facto relationship, you must apply to the Family Law Courts to have your property matter finalised within two years of the end of the de facto relationship.
In some cases, an Application may be made outside the strict two year time limitation, but in order to make such an Application, a party must be able to prove that there are exceptional circumstances surrounding their matter.
Upon entering into a Financial Agreement, it is also important that a review is done of your Will, Enduring Power of Attorney and Guardianship documents. This is particularly the case in circumstances where you are a party to a de facto relationship that has come to an end. In some situations, a Financial Agreement may be able to assist you in protecting your estate from any future claims made by your ex-partner, whereas in other cases, alternative measures may need to be put in place to help guard your estate against the possibility of a future claim from an ex.
Attwood Marshall Lawyers – leading family law team ready to help resolve disputes with as little conflict as possible
When a de facto relationship or marriage has come to an end, disputes can arise around property, children’s arrangements, and spousal support. It is important to try to resolve matters at the earliest opportunity in a legally binding way so that all parties can move on with their lives and conflict can be resolved effectively.
As modern relationships continue to evolve, and de facto relationships are acknowledged by law, it is important for separated couples to obtain trusted advice and put the right mechanisms in place to protect their financial and family interests when a relationship ends, understanding how the law applies to their unique situation.
If you want to understand how to protect your financial interests when entering a relationship, or leaving one, or need advice with a family law matter, please contact our Family Law Department Manager, Donna Tolley, on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au, or free call 1800 621 081 any time.
Our family lawyers are experts in all areas of family law, including divorce applications, financial agreements, property settlements and spousal maintenance, parenting disputes, and domestic and family violence matters.
Read more:
Protecting your financial interests when a long-term de facto relationship comes to an end
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