Although a formal ceremony
isn’t required to be in a de facto relationship, and different laws
apply, they can still hold some of the same rights as a marriage.
Because of this, assets held both jointly and solely by either person,
regardless of when they were acquired, may mean that either person could
receive a legal share of these assets in the instance of a relationship
breakdown.
What is a de facto relationship?
A de facto relationship, defined by Australian law, is when two
people are deemed to be in a relationship, where they are not legally
married, but are living together on a ‘genuine domestic basis’. It is
not always this simple, though, as you may still be legally found to be
in a de facto relationship if;
- Either person is still married to another person
- Either person is in another de facto relationship, or
- You are in a genuine and commited relationship, but do not live together on a full-time basis
Simply, the courts will review the relationship situation on a case
by case basis, checking all evidence to determine if a de facto
relationship exists/existed. The courts will look at a wide range of
factors to determine this, including;
- Duration of the relationship
- Whether a sexual relationship existed
- The degree of financial dependence or interdependence between the couple
- The ownership, use and acquisition of property
- The degree of mutual commitment to a shared life
- The care and support of any children
- The reputation and public aspects of the relationship
Making a claim
To make a claim against a former de facto partner, this must happen
within two years from the declared end of the relationship, and under
Australian law, the person making the claim must prove a defacto
relationship existed, within the guidelines of the Family Law Act.
Ways to protect your assets
There are a two main ways to help protect your belongings should your relationship break down:
1. Draw up a Financial Agreement
A Binding Financial Agreement can be entered at any time between the couple during the relationship and even during the separation. Similar to prenuptual agreements, this formalises how property, finances and other assets are to be divided, should the relationship break down. This agreement may also outline any other areas either person can and cannot make a claim about.
2. Keep finances separate
Should you not be able to darw up a legally Binding Financial
Agreement, at a minimum, you should agree to keep your finances
separate, including;
- No intermingling of finances
- No joint bank account
- No responsibility for each others’ debts
- Each person makes their own decisions on the outgoings of their wages
- There should be no evidence of intent to provide for the other in a will or as a beneficiary in superannuation funds or life insurance policies (there should be no evidence of financial planning for their future together)
- Aquired property should be in one person’s name with no joint ownership, and the other person should be contributing to cover all normal living expenses
If you have any ongoing concerns that your relationship could impact
on your finances or other assets, we strongly recommend that you seek
professional legal advice.
With no upfront fees, we also offer the first hour of your
initial consultaton completely free, so that we can assess your needs
and ensure you are fully informed of your options.
