“We just living together so my assets are safe”

Hello everyone,

Two years ago the law changed in most states of Australia and now de facto couples (both opposite sex and same sex) who separate are subject to the same laws as married couples.

As statistics show that de facto relationships tend to be shorter than marriages this change in law will impact a significant number of people.

A person is in a de facto relationship with another person if they are not married or related, and they have a relationship as a couple, living together in a genuine domestic relationship.

When working out if people have a “relationship as a couple” the court will look at a number of factors including:-

1. the duration of the relationship;
2. the nature and extent of their common residence;
3. whether a sexual relationship exists;
4. the degree of financial dependence or interdependence;
5. any arrangements for financial support between parties;
6. the ownership, use and acquisition of property;
7. the degree of mutual commitment to a shared life; and/or
8. the reputation and public aspects of the relationship.

If a de facto relationship breaks down a claim for property settlement can be made:-

1. if the period(s) of the de facto relationship is greater than two years OR
2. there is a child of the relationship OR
3. one party has made such a substantial contribution to the assets of the
other that a failure to make an order would result in serious injustice OR
4. the relationship was registered by the parties.

Thus if you live with someone, then provided one of the above conditions exist you are vulnerable to a claim for property settlement and/or maintenance. The only way to protect assets is to sign a Binding Financial Agreement which will set out what will happen if you separate.

If you go on to marry the Binding Financial Agreement is automatically invalidated and a new agreement will have to be drawn up to protect assets from your husband or wife.

As always please feel free to comment on this or any other of my blogs. I would also be happy to respond to any questions you may have on this topic. If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on +61 3 9613 6555