De Facto Relationships, A New South Wales and Victorian Perspective
Originally de facto relationships in NSW were governed by the De Facto Relationships Act which was replaced in June 1999. The term “de facto relationship” has been significantly widened to cover all relationships between two adults over the age of 18 years who live together, are not married and who are not related to each other. This definition now covers gay couples providing them with a level of protection which had not existed previously.
N.B. De facto couples are treated very differently from married couples particularly with regard to the following:
>> maintenance
>> division of property
>> intestacy
Prior to 1st June 1988 de factos in Victoria were left without remedy however this has now changed. Victorian law contemplates domestic relationships and domestic partnerships. A domestic relationship includes a relationship between a gay couple where the couple live or have lived together on a genuine domestic basis.
Financial Agreements – NSW
Much of what has been said about married couples who seek to organise their financial affairs covering both property and spousal maintenance without court intervention also applies to de factos. As indicated previously de facto couples can now enter into cohabitation agreements, domestic relationship agreements and termination agreements at the beginning, during or at the end of their relationship. Many of these financial agreements are about securing a division of property quickly in the event of a relationship breakdown.
All financial agreements have their genesis in contract and do not involve the court’s consent. Provided they have been properly executed and the necessary formalities followed they provide a proper basis for the parties to finalise their financial affairs enabling them to bring their relationship to an end quickly and cheaply.
A cohabitation agreement is a form of domestic relationship agreement which is made before the relationship starts or during it.Termination agreements are made in contemplation of separation or following separation.It is important to note that with any of these agreements they will not be binding unless they are in writing, signed by both parties each of whom must receive independent legal advice attested to by the solicitor issuing a certificate.The courts can only set aside these agreements in limited circumstances. Stamp duty exceptions apply in New South Wales provided the matter is handled properly.
Financial Agreements – Victoria
The term “domestic relationship” applies equally to married and de facto persons.In Victoria the term domestic relationship replaces de facto relationship significantly broadening the definition to include gay couples who live together on a genuine domestic basis.
Spousal maintenance does not apply to de facto parties although some child bearing expenses are claimable.
In Victoria child maintenance and child support are dealt with under the Family Law Act. Family violence has criminal consequences and is of particular concern under the Family Law Act where children are involved.
Separating couples can only apply to the court for property settlement within two years of the end of their relationship special circumstances apart.The parties can agree as to how their property is to be divided and this can be done by way of deed or other financial agreement. Where the parties cannot agree it is open to them to apply to the court for an order dividing their property. Although de facto partners may make a claim for a share of assets at common law this is rarely done. Most claims proceed under statute.
The court has the power to make any order it considers fair in relation to property belonging to the parties even if it is in one party’s name. Maintenance is excluded from any property settlement as indicated above. Essentially before a judge can make a decision about a division of property the court has to be in possession of all the relevant information so that as assessment of the contributions make by each of the parties towards any of the property or financial resources can be made. Any decision of the court has to be fair and equitable in the circumstances.
When assessing the contributions made by various parties the courts always take into account any:
>> direct or indirect financial contributions;
>> direct or indirect non-financial contributions;
>> contributions to the welfare of the family.
In a de facto matter the parties may have entered into a financial agreement either before or during the relationship which the court will take into consideration in determining the respective parties’ entitlements although it is not governed by what the agreement says. Irrespective it is better to have an agreement than not as it evidences the intention of the parties and often makes it a lot easier to deal with the division of property in these circumstances.
Superannuation is the main area of difference as it is classified as a financial resource and where included in an agreement it does not bind superannuation trustees as with flagging or splitting agreements under the Family Law Act.
The law involving separating de facto couples is complex and requires the assistance of a lawyer skilled in this area. Even where parties decide to mediate they are better served where they obtain legal advice as it provides them with a clearer understanding of possible outcomes.
Where the relationship has degenerated to such an extent that the parties cannot be civil to each other then they need to seek proper informed legal advice to deal with their affairs. One of the great things about approaching the court is that where property needs to be divided court orders are final. This provides everybody with the opportunity to move forward positively.
If you are interested to know something more about De Facto Relationships, A New South Wales and Victorian Perspective and Family Lawyers then please visit our website www.laclawyers.com.au
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