These days, relationships can be given many different labels. Popular social media site, Facebook, offers many options when updating your relationship status including; in a relationship; engaged; in a civil partnership; in a domestic partnership; in an open relationship; it’s complicated…and complicated it is! Then there are those who choose not to label their relationships, and decide to take the relaxed approach. Regardless of how you prefer to categorise your relationship, the law may determine it otherwise.
No one likes to consider worst case scenarios. When things are going well in a relationship, the last thing we think of is the possibility of separating, and what effect a separation may have upon us. You may even believe that the breakdown of your de facto relationship will only impact upon you emotionally, with the burden of family law property matters and the requirement for a property settlement being relevant only for those who are married. This is not the case.
Are You in a De Facto Relationship?
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’. Having regard to this definition, you may then consider your circumstances and decide that due to the fact that you and your partner maintain separate residences, this excludes you from being defined as being in a de facto relationship. Unfortunately, it is not that simple, and in some cases you may be considered to be in a de facto relationship even though you and your partner are living apart!
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.
It is also important to note that a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex, and 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! Yes, that’s right – even if you are married or a partner to someone else…
As you can see, many factors are taken into consideration, and the existence of a de facto relationship is not a clear-cut issue. So in a seemingly uncertain situation, what can you do to afford yourself some peace of mind and security? Rather than leaving things to chance, there are measures you can take to protect yourself and your hard earned assets.
What Can You Do?
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’, you should 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 you much, much more. Having a Financial Agreement in place will assist in a prompt resolution of family law matters should you and your partner separate, which will not only save you money in terms of legal costs, but will also reduce the emotional stress that such matters can evoke.
In order for you and your partner 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.
If you were a party to a de facto relationship that has come to an end, entering into a Financial Agreement may also be an option for you. Entering into a Financial Agreement in this circumstance will 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 a lengthy period of time. 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 that two year period 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.
We have lawyers with extensive experience in dealing with family law and estate planning, and can assist you with achieving a result that is just and equitable. As is the case with most legal issues, getting proper advice is crucial to avoiding the costs and stress of a messy relationship break up. Please contact our Department Manager Donna Tolley on direct line 07 5506 8241 or email dtolley@attwoodmarshall.com.au or free call 1800 621 071.
