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What Does ‘De Facto’ Mean for Me?

what does de facto mean for me

Generally the question of whether or not a de facto relationship existed will occur and one of them seeks to divide up the property. When this happens, the dynamics of the relationship is reviewed to establish whether or not the couple have/has lived together in a ‘genuine domestic basis’.

The term ‘genuine domestic basis’ contains a number of factors and is the foundation of what forms a de facto relationship.

These factors are contained in the Family Law Act and include:-
• Length of the relationship;
• Did the parties live together, and if not why not;
• Whether a sexual relationship existed between them;
• The degree of financial dependence or interdependence and any arrangements for financial support;
• Ownership, use and acquisition of property;
• Whether the relationship is or was registered under a State law as a prescribed kind of relationship*;
• The degree of commitment to a shared life together;
• The care and support of children;
• The reputation and public aspects of the relationship.

This is not an exhaustive list and the particular circumstances of each couple are taken into account.  No one factor is more important than the other nor is the genders of the couple.

There is a common misconception that couples need to live together for two (2) years before they are classified as de facto partners.  This is not correct. Living together in a ‘genuine domestic relationship’ does not have a specific time period associated with it.

However, there are time factors which may apply when a party wishes to commence court proceedings for division of property.

Generally, the question of whether a de facto relationship exists is relatively simple to answer and most parties agree when separation occurred.  However this can become a complex issue. For example, what happens in a situation where a couple continues to live in the same house to raise their children, but in all other respects are living separately? In this instance one party may believe that they have separated (they may no longer be sharing a bedroom or they may be keeping monies separate), but the other party may believe they are still together.

The key question which needs to be answered is – did one party form the intention to separate and did s/he act on that intention?  A secondary matter is  –  was that intention to separate communicated to the other party?

If this is disputed, then the couple’s actions and their finances will be relevant. For example:-
• has a party been excluded from the other party’s family events;
• did they go out together as a ‘couple’,
• has the other party been removed as a spouse/partner from tax returns, or
• have they severed their financial connection to such an extent to demonstrate the lack of mutual commitment to a shared life?

If separated couples are unable to agree whether a de facto relationship existed or not, or about the date of separation, then the Family Court has the power to make a declaration on this matter.

Property Settlement

property settlement

 

Today I wish to discuss property division and what things the Court takes into consideration when making its decision.

The first thing to ascertain is the asset pool. In other words, one needs to identify all the assets (and their value) of both parties. Generally, all assets must be taken into account, whether they were obtained before or during the marriage, or even after separation.

The definition of “property” is very wide and includes everything that you and your spouse own either jointly or separately. For example, any real estate, shares, motor vehicles, jewellery, savings and household contents/furniture whether registered in your name solely or in both names.

It is also necessary to take into account ‘financial resources’ such as superannuation entitlements, interests in any trusts, long service leave entitlements, personal injuries claims etc.

The Court also looks at each parties contribution towards acquiring, increasing, maintain or improving any asset. Both financial and non-financial contributions are considered. For example, if one party has been running and looking after the household and caring for the children whilst the other spouse has been working fulltime and earning income, the non-working spouse is deemed to have made a contribution as a homemaker and parent and their non-financial contribution is taken into account. Initial contributions towards the marriage such as who brought what assets into the marriage as well as gifts and inheritances are also relevant.

In deciding who gets what, the Court also has regard to the future needs of both parties taking into account a wide range of things such as each parties age, health, income earning capacity, if they have the care of any children etc etc.

The law governing the division of assets is very complex and therefore, you should obtain legal advice before making any agreement with your spouse.

Book a consultation at McLaughlin & Associate Lawyers to ensure you receive Brisbane’s best legal services.

Children’s Issues

children issues

As child custody lawyers, today I will talk about children’s issues when couples separate. Since 1996, the Family Law Act was amended whereby the words “custody”, “access” and “guardianship” are no longer used. Court orders in relation to children now include:

Residence
– defining the person with whom a child is to live;
Contact
– defining the extent of contact between a child and another person;
Specific Issues
– defining various aspects of parental responsibility.

Both parents have full responsibility for the children until they reach the age of 18 years unless a Court orders otherwise. This responsibility remains whether or not you decide to remarry or have other children.

If couples agree as to residence and contact I recommend that a written agreement be signed by the parties and filed with the Court. These agreements are known as “Consent Orders”. The reason I recommend this is that unfortunately, sometimes relations between a couple deteriorate after separation and whilst the parties are on good terms these matters should be resolved, especially where the children are young.

If unfortunately, parents can’t agree on matters relating to their children then the matter is referred to the Court and a Judge will make orders specifying with whom the children are to reside and the terms of contact for the non-resident parent.

If the matter is referred to the Court the Judge’s first and foremost concern is “what is in the best interests of the child”, not what is in the best interests of Mum or Dad. What is in the best interests of the child, as regards with whom that child lives with, how often a child has contact (if at all) with the non-resident parent etc.

It is also open to grandparents to make application to the Court for contact with their grandchildren as normally it is in the child’s best interests that they have such contact.

If you need to contact child custody lawyers, please call us on 07 3808 7777 or send us an email.