One question that lawyers often find unmarried people ask outside of work is “if we broke up, would he/she be able to make a claim on my assets?”
This answer to this question comes down to whether or not you are in a de facto relationship. Unfortunately, that is not always as cut and dry as it may seem and the topic carries with it a lot of misconceptions. The main one being that there is no set timeframe from which you can definitely say that you are in a de facto relationship. Rather, the legislation simply indicates that you are in a de facto relationship if you are not married, and you live together in a marriage-like relationship. Understandably, what one person considers to be “marriage-like” may be vastly different to what another considers that to be.
So at what point are you in a de facto relationship? Have you been unwittingly in one without even knowing it?
The answer to this question is found by considering a range of factors. The following will be relevant, but is not an exhaustive list:
- The length of the relationship;
- The nature and extent of common residence i.e. whether you live together or spend significant time together;
- Whether there is a sexual relationship;
- The degree of financial dependence or independence – so, whether you intermingle your money, or whether one person financially assists the other etc;
- Whether there is joint ownership, use or acquisition of property – for example, whether you own a home together, live in a home together or have assisted one another to acquire an asset;
- Whether there was a mutual commitment to a shared life;
- Whether there are any children of the relationship; and
- The reputation and public aspects of the relationship – for example, whether you attend social and family events together.
You do not have to satisfy all of the above factors for a de facto relationship to exist, a holistic approach is taken. So, you may only spend 4 or so nights per week with your partner and still be considered de facto if, for example, you share a joint account, own property together and are publically recognised as being a couple.
Another common misconception is that, if you are married to one person, you cannot be in a de facto relationship with another. The fact that you are married to someone does not stop a finding being made that you are in a de facto relationship with another. The same is true if you are living with one person in a de facto relationship and sharing a relationship with another person. This demonstrates that, even if you are not living with a person, you can still be found to be in a de facto relationship with them, potentially giving rise to the potential for a property settlement dispute.
The importance of knowing or considering whether you are in a de facto relationship is that, if you are, your partner may commence proceedings in the Family Court of Western Australia for property settlement or de facto maintenance if any of the following apply:
- There has been a de facto relationship between you for at least 2 years (so, while there is no set timeframe for being in a de facto relationship, there is a timeframe from which you can apply for property settlement or maintenance); or
- There is a child of the relationship who is under the age of 18 and, failure to make an order would result in serious injustice to the primary carer of the child; or
- The party applying for the order made substantial contributions to the property or financial resources of the parties and failure to make an order would result in serious injustice to them.
In addition to the above requirements to commence proceedings, certain jurisdictional requirements must be met. So, at the time of filing the application, one of the parties must be present in Western Australia and at least 1/3 of the relationship must have taken place in Western Australia or substantial contributions must have been made in Western Australia.
For further information on this important issue, contact us.