Good morning, everyone
What are the consequences of being together in a family relationship?
I wish to discuss de facto relationships and a Financial Agreement in accordance with the
Family Law Act 1975 (“Act”). Unfortunately, many people who commence a family relationship do not think about the legal consequences that arise from that decision. A de facto relationship may arise even if a couple do not live in the same residence. As long as the public at large by your actions see you as family members, your relationship may be categorised as a de facto relationship, under the provisions of the Act. In the event of the breakdown of the relationship, such determination may lead to your assets obtained prior to the commencement of the relationship, being considered part of the family pool of assets.
Definition Of De Facto
Two people are considered to be in a de facto relationship if “they are a couple living together on a genuine domestic basis. This can occur whether you are living in the same premises or not. If you are living together as a couple, the Act will recognise your relationship in the same manner as if you were married. You do not necessarily need to be living in the same residence for the Court to consider your relationship as de facto. The court will consider the length of your relationship, the degree of financial dependence or interdependence and the reputation of the public aspects of your relationship. Many relationships have many or all of the above elements, and not realise that the court will determine it as a de facto relationship.
Property Settlement For De Facto Couples
The FLA enables property orders to be made by the court, for de facto relationships in a similar fashion to that, for married couples. This means that one member of the relationship can make a claim in the event of the relationship breaking down within two years of the date of breakdown.
Binding Financial Agreement – A Solution to The Problem?
A financial Agreement (“BFA”) under the FLA is a contractual agreement between yourself and your partner about how your financial affairs will be arranged, in the event that your relationship breaks down. Such an agreement includes all property matters but not parenting and allows parties to form an agreement suitable to their particular needs and not necessarily made in accordance with the FLA provisions.
There are
three substantial benefits to entering into a BFA:
- It allows you to make decisions about property either before, during or after a de facto relationship;
- The provisions can be tailored to the parties’ requirements to provide certainty; and
- It allows for clarity regarding the financial affairs, it excludes the provisions of the Act, thus avoids litigation.
Why should I have a BFA before commencing a relationship?
If you do not enter into a BFA before commencement of your relationship, you may jeopardise all those assets which you brought into the relationship which could be absorbed into the family pool of assets. As long as the provisions of the Act regarding BFA’s are in place the Court is excluded from interfering. The court may interfere if the requirements have not been fulfilled or where there is fraud or deception. A BFA can be drafted meet your requirements and requires each party to have independent legal advice. JCL Legal has a wealth of knowledge and experience to assist you with the drafting of your BFA and assisting you in property and/or parenting matters. If either you or someone you know needs assistance, do not hesitate to contact us. Wishing you a great day, Jeffrey
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