Understanding when ‘my’ assets become ‘our’ assets:
A guide to what it means to be de facto and past the 'puppy love' phase.
“My partner and I have broken up, but we weren’t married, so they can’t claim anything of mine, right?”
As lawyers, this is something we get asked about all the time.
The reality is the point in which harmless dating becomes a serious relationship can often be overlooked. It is important to be aware that just because you haven’t officially tied the knot, doesn’t mean that your personal assets remain completely protected.
Has your relationship reached ‘de facto’ status?
In our previous article “De Facto Relationships – No Strings Attached?” we considered that a de facto partner would have the same property rights to a relationship as a legal spouse. So, if your relationship extended past the ‘puppy-love’ stage, it is important to consider whether it reached so far as ‘de facto’ for the purposes of the Family Law Act.
Under section 4AA of the Family Law Act (1975) (Cth), a relationship will be de facto when two individuals (who are not married, nor related) are living together on a genuine domestic basis.
We know what you’re thinking, what does ‘genuine domestic basis’ mean?!
Unfortunately, it is not so clear cut. When determining de facto status, the court will place your relationship under the microscope and consider any or all of the following factors:
1. The duration of your relationship;
2. Whether you and your partner were living together and, if so, the nature of your shared residence;
3. Whether a sexual relationship existed;
4. Whether your finances were shared or remained separate, and the degree of financial dependency between you both (if any);
5. The ownership of property;
6. The care and support of any children;
7. Whether the relationship was formally registered under a prescribed State or Territory law;
8. The commitment shown to each other’s life; and
9. The public perception and reputation of your relationship.
Have you unwittingly been in a de facto relationship?
Considering the above, have you unwittingly been in a de facto relationship? The Family Law Act specifically states that an individual can be in more than one de facto relationship at a time, even if they are legally married to another. Accordingly, the court in Jonah & White [2011] FamCA 221 discussed that where two individuals reside with each other every other day, yet also maintain separate households of their own, this would not necessarily be inconsistent with the characteristics of a de facto relationship. So, even if you think your relationship is detached, low-key or away from the public eye, it is important to take the necessary steps to protect yourself from being susceptible to claims from ex, or current, partners.
Don’t get caught out - there is no one formula to determine a de facto relationship, and the weight given to each factor will be determined on a case-by-case basis. Whatever your scenario, the team at CPC Lawyers are here to offer professional, well-rounded advice relating to asset protection. Contact us on (08) 7325 0219 today to arrange an appointment with one of our experienced solicitors.