De facto Relationships - are you in one?

Sunday May 1, 2011

Are you living with your partner? Are you not living with your partner but are in a committed relationship? Are you thinking about moving in together? Do you go on holiday together regularly? Are you in a sexual relationship?

You probably need to start thinking about whether the Property (Relationships) Act 1976 applies to your relationship. If the Court decides that you are in a de facto relationship your assets may be divided on a 50/50 basis.

Whether a qualifying relationship comes under the Act is often difficult to determine. The following factors will be considered:

  • is there a sexual relationship
  • do you present yourself in public as a couple
  • are you living together under 'one roof'
  • how many years you have been in a relationship (not necessarily 3 years)
  • do you share child care responsibilities
  • do you support each other financially
  • do you do household duties
  • do you own or use property together

If any of these apply to you, particularly in combination you should give us a call.
A couple of examples illustrate the difficulties in this area. In a recent case a de facto relationship was held to exist where the parties did not live together in a conventional sense for 10 years. During the 'relationship' the female party remained on the DPB and the male party lived at another home where he showered and kept all of his clothes. They presented themselves as a couple in public and to friends and family. In contrast the Court held in another case that a 'de facto relationship' did not exist where the parties had shared a common residence for some 20 years. During this time the parties shared care and support of a child and entered into a business relationship together. One of the parties was however involved in a close personal relationship with another woman.

In short our advice is: it is better to be safe than sorry. If you are in a de facto relationship and you do not want your relationship property assets shared equally then our advice is for you sign a section 21 "contracting out" agreement. This agreement will protect your assets and set out how you wish your and your partner's property to be divided. The alternative is that the Act will 'decide for you'. We agree that it is often a hard discussion to have but it will potentially save you thousands of dollars in legal costs. 

If you have any doubts about whether your relationship falls under the Act or want to know more about section 21 contracting out agreements please contact one of the family law team for advice.

Ewan Eggleston - Senior Solicitor
Claire Allen - Solicitor

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