Often one party to a marriage or de facto relationship had property or cash before entering into the relationship. In other cases, one partner may have purchased a property or acquired an asset, which they consider to be their own and which they have devoted themselves to maintaining. One common misconception is that an asset that is solely owned by one party does not get taken into account in a property settlement, upon separation. This can also become an issue where one party purchases an asset, such as a property, after separation but before a property settlement has been finalised.
Unlike Kim Kardashian, in Australia, you cannot marry someone on one day, only to decide that was the wrong decision and file for divorce 72 days later.
Instead, the law recognises the fragility and “ups and downs” of relationships, requiring that the marriage has broken down irretrievably. Contrary to popular belief, it is not relevant why the relationship broke down, just that it has. This means that the Court does not consider factors such as infidelity.
To show that the marriage has broken down irretrievably, it must be shown that the parties have lived separately and apart for at least 12 months before being able to apply for a divorce. If one person moves out but moves back in, to give the marriage another shot, for example, this is taken into account when determining the required 12 months of separation. If the couple lives together on one occasion for less than three months, or any other not substantial period of time, that time is not calculated in determining the 12 months period.
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?
As a firm specialising in family law and wills and estate matters, we see the impact that separation, death and family disputes have on people of all walks of life, every day. There is a known link between serious life events such as these, having a substantial impact on personal wellbeing, often for prolonged periods of time.
These issues permeate our society and today, we would like to remind our clients and our wider network that it is okay to talk, and there are always avenues and people who are willing and able to help you.
Big win or big loss? Post-separation lottery wins and other windfalls
Imagine this – you and your husband, wife or partner have separated. You haven’t obtained a Court Order specifying who keeps what because you simply don’t think you need one, or, maybe you just haven’t gotten around to it yet. You check your Oz Lotto ticket to find you’ve won – big. Or, perhaps a loved one has passed on and left you an inheritance in their Will. You’re thinking “Surely my ex doesn’t have a right to this money…. Do they?”
The answer depends – in some cases they will, and in others they won’t.
It's true that any communication between you and your lawyer is confidential. It cannot be divulged, discussed or provided to other people or the Courts. This concept is known as Legal Professional Privilege or for the sake of this blog, LPP. It's the backbone of the honest relationship a lawyer and their client must have at all times. But did you know LPP can be waived or lost? Did you know that your former-wife, husband or partner may be able to access the entirety of your Family Law file once you die? Here’s how and, more importantly, how to prevent it.
Married at First Sight – what could go wrong?!
Married At First Sight – the series we all love to hate and hate to love. With many people sick of choosing the wrong person for themselves time and time again, often via their online dating accounts, you can forgive some for thinking that, just maybe, these modern-day arranged marriages are the way of the future. And who can blame them with unlikely love birds like Telv and Sarah flaunting their love on national television?!
SPOILER ALERT - The Bachelor - who will get the ring?
And so, another season of “The Bachelor” is in full swing, a sign of hope to anyone who’s single that they too could find love, so long as their willing to go on national television and date 22 people at the same time? Or maybe they’d rather be one of the lovely ladies playing house with their 21 competitors. Either way, people across Australia will be watching as all 22 girls fall for Matty J, hoping that a shiny rock awaits the lucky lady who wins his heart.
I’ve separated from my partner – is my Will still valid? Can I revoke it?
When something difficult or unexpected happens in life, it can be hard to wrap your mind around anything other than the distress or shock you’re feeling. People often come to us for advice after separating from their husband, wife or partner and one thing we always ask is whether they have considered the consequences of their separation on their Will.
We understand that discussing your death is hardly a desirable conversation, especially when you’re going through a separation, but we have also seen the impact that taking no action can have on a person’s family and friends.