Is your "on again - off again" relationship more than you think it is?

Publications > Is your "on again - off again" relationship more than you think it is?

 

December 2011

 

Since 1 March 2009, amendments to the Family Law Act mean that de facto couples now have the same rights as those of married couples to apply to the Family or Federal Magistrates Court of Australia seeking orders for a property settlement and/or spousal maintenance.

 

Unlike married couples, in order to obtain assistance from the court, de facto couples must firstly satisfy the court as to one of the following conditions:-

 

1. the period of the de facto relationship was at least 2 years; or
2. that there is a child of the de facto relationship; or
3. the party to the de facto relationship who applies for the order made substantial contributions to the property of the other de facto couple; and
4. a failure to make an order would result in serious injustice to the applicant.

 

The ability to apply for property or spousal maintenance orders in the Family or Federal Magistrates Court does not apply to a de facto relationship that “broke down” before 1 March 2009.

 

In a recent case before the Family Court, the parties had been in a de facto relationship between March 1994 and December 1998 (4 years and 9 months), and again between April 2008 and October 2009 (18 months). The two agreed periods were thus almost 10 years apart. The de facto husband argued that the de facto wife could not apply to the court and seek an order for spousal maintenance and property settlement on the basis that although final separation occurred after 1 March 2009, the parties had not lived in a ‘de facto relationship’ for at least 2 years prior to separation.

 

The Court determined that the two agreed periods of cohabitation could be combined to establish the two year period required to make orders for alteration of property interests under the Family Law Act.

A couple may live together with the hope that the relationship will be long lasting, but despite their best intentions the living arrangements don’t work out and they separate. After a period of separation, the parties may reconcile and cohabit again with the mistaken assumption that they are “starting over” and therefore the ability of the court to make orders altering property interests does not apply to them. The Family Court has now made it undoubtedly clear that this is not the case and any “on again-off again” relationship will need to be viewed carefully.

 

If you are in a de facto relationship and wish to avoid ending up in court arguing about property or spousal maintenance, then the safest course of action is to enter into a Binding Financial Agreement (also known as a Pre-Nup Agreement).

 

A Binding Financial Agreement is a written document which sets out what you and your partner have agreed to do with respect to financial matters (including property settlement, maintenance and superannuation splitting) in the event of a breakdown of the relationship.

 

For more information on Binding Financial Agreements, please contact Tuskeen Jacobs on 3009 8444 or t.jacobs@rostroncarlyle.com.

 

Someone you can relate to

 

Most importantly, Rostron Carlyle shows a depth of understanding of and empathy towards the emotional, personal and financial complexities and pressures of marriage, separation and divorce.

 

A Rostron Carlyle lawyer will be a person that you can relate to.  We'’ll talk your language. Most

importantly, a relationship with a Rostron Carlyle lawyer will be "a relationship you can rely on".