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North Brisbane Divorce Lawyers

Do I still need a lawyer if I’ve reached an agreement with my former partner? | North Brisbane Divorce Lawyers

We as family lawyers love hearing that a separation was amicable, or that someone is still on good terms with their former spouse or partner. However, agreeing to divide your property without obtaining a legally binding property settlement can leave you exposed in a number of ways.

Limitation periods

If the limitation period has not yet lapsed (see our article on time limitations), your former partner may initiate proceedings in Court seeking a legally binding property settlement, even though you have previously agreed something informal between yourselves.

Even where the limitation period has lapsed, if the Court is satisfied that hardship would be caused to your former partner or a child if leave were not granted to bring the action out of time, leave may be granted for your former partner to bring the matter before the Court outside the limitation period.

Generally, the property pool which is available for division between parties is the property pool as it exists at the time that a final property settlement is made.  Any assets acquired by either party post separation from savings or other assets acquired during the relationship may then be included in the property pool available to be divided between the parties (although adjustments may be made in favour of a party regarding their particular contribution post separation). If then, for example, you had received the family home when you negotiated an informal settlement with your former partner and since sold that property and used the funds from the sale to buy a new house, that new house (including any increase in capital value since its purchase) may form part of the property pool available for division with your former partner.

Legally Binding Agreements

There are a number of ways you can make your agreement for the division of property legally binding.

These include:-

  1. Consent Orders- the terms of the Orders are agreed between the parties and an Application signed by each party is filed in the Registry of the Family Court seeking that the Court issue the orders in the terms as agreed;
  2. Court issued Orders – after the parties have progressed through a trial, the Court determines what is a just and equitable division of property; and
  3. A Binding Financial Agreement made in accordance with the requirements of the Family Law Act 1975 (Cth).

When parties are able to agree as to how to divide their property, whether that’s over a cup of coffee or with the assistance of a lawyer, a lawyer can then assist with drafting the Application for Consent Orders as well as the Orders that you are seeking that the Court issue.

North Brisbane Divorce Lawyers

Why you still need a lawyer | North Brisbane Divorce Lawyers

It will be important to first obtain legal advice where you are seeking Consent orders to ensure that the proposed division of property is within the range of what the law would regard as just and equitable for your particular circumstances.

Contact our team of North Brisbane Divorce Lawyers today for an initial consultation regards how best to finalise your property settlement.

Brisbane Family Law

When Harry met Sally | Part Two | Settlement of Property

This week we continue our weekly series concerning the dilemmas faced by each of Sally and Harry after the breakdown of their relationship. We consider issues facing Harry and his viewpoint in relation to the final settlement of property that Sally is wanting to arrange with him.

Harry does not agree with Sally

Settlement of Property

Settlement of Property

This may not surprise you in itself. However, Harry’s first and foremost issue is not how property should be divided. As far as Harry is concerned, he does not accept that he and Sally are even officially separated.

Harry doesn’t dispute that they are now living in separate places. Harry had moved out to live with his parents but he believes that this was only a temporary measure whilst he and Sally sorted out their differences.

However, since he moved out, tensions between them had reduced and Harry had continued visiting Sally and the children at the house where she still lived with the children, evening staying for dinner with them and sometimes staying overnight. In fact, there had been a period of a few weeks about two months ago when he had stayed with them for a continuous period of a few weeks.

There had been a few occasions when they had talked about Harry moving back in and acknowledged to each other that they still had feelings for each other. They had not been sexually involved for a long time but Harry and Sally had slept together on a number of occasions since he moved out when he had stayed overnight with Sally and the children.

Harry had continued to financially support both Sally and the children, paying the mortgage and rates at the house where they lived as well as paying for groceries, health insurance for them all and other living expenses not only of the children but also for Sally.

Although their family and friends knew that he did not live full time at the house, Harry and Sally continued to socialise together with the children amongst family and friends.

What can harry do where he does not want to finally resolve property matters with Sally?

Unfortunately for Harry, if Sally is of the view that their relationship has broken down irretrievably and has conveyed that to Harry, she will be entitled to pursue a property settlement.

However, the question of whether or not they are considered to be separated at law will be important in determining when it is that either or both of them can apply for a divorce.

We would recommend to Harry that he has an initial consultation with a family lawyer experienced in family law, including property settlement matters so that he can obtain some preliminary advice about how his entitlement for settlement of property is worked out and what he could expect in a property settlement with Sally as well as obtaining advice about when and under what circumstances Sally may apply for a divorce if she wishes to do so.

At LGM Family Law, we offer a free phone consultation for up to 15 minutes. However you should be aware that we cannot act for both parties to a relationship or former relationship so that if Sally has already sought advice from us, we cannot also provide advice to Harry.

If you would like to learn more about settlement of property following a separation, click here.

However, since our Sally and Harry are only fictional characters, each week during this series, we will develop on Sally and Harry’s situation and discuss issues effecting each of them.

 

 

Property Settlement Lawyers

Can you obtain exclusive occupation of the former matrimonial home after a separation?

Going through a separation? You might be wondering who gets to continue using the matrimonial home. Could you be entitled to the sole use and occupation of it?

Example Scenario:

Alfie and Joan are married. They have recently separated but have both continued to live at the former matrimonial home with their two children, Colin who is 16 years of age and Danielle who is 12 years of age. Colin is currently undertaking year 12 exams and is struggling with the conflict between his parents. Colin tells Joan that he can’t keep studying with the ongoing conflict and needs to have a quiet space. Joan asks Alfie to leave the family home to help make the home environment more suitable for the children and to allow Colin and Danielle to finish off the school year. Alfie is not happy about this and says that he won’t leave.

Question: Can Joan remain in the family home and require that Alfie live in alternate accommodation?

Separation

Who gets to use the matrimonial home following separation?

This issue of who will remain living at the former matrimonial home frequently arises when a couple separates. Some people will be able to resolve arrangements amicably and may agree to remain separated whilst living under the same roof.

Real difficulties can arise however where parties are not amicable. One party may not be able to  afford to arrange other accommodation but at the same time, the other party may not be willing to leave the former matrimonial home.   The parties may have children living at home and there may be issues involving domestic violence or abuse.

Section 114 of the Family Law Act 1975 (Cth) allows a party to a relationship (married or de facto) to apply to the Court for an injunction restraining the other party from doing a number of things, for example:

  1. from entering or remaining in the family home;
  2. from entering or remaining in the suburb in which the home is located.

Before such an order may be made, the Court hearing the matter must be satisfied that it would be “proper” to make the order.

Factors that a court will consider in determining what order may be proper to be made include:-

  1. The means and needs of the parties;
  2. The needs of the children;
  3. Any hardship to either party or to the children; and
  4. Where relevant, whether conduct of one party may justify the other party in leaving the home or in asking for the expulsion from the home of the first party.

This is not an exhaustive list and there are other factors which the Court in its discretion may consider.

The party seeking the order for exclusive occupation must satisfy the Court on the balance of probabilities that there are sufficient circumstances that justify the Court in making such an order.

Where domestic violence and abuse is occurring, it can be expected that the Court will place significant weight on the negative impact of that abuse upon the children when considering all the relevant factors.

You are welcome to contact us or call us on (07) 3506 3651 if you are needing assistance settling your living arrangements and financial affairs with your former partner following separation.

Allegations of family violence in a child custody battle

How might family or domestic violence allegations affect you seeing your children?

Your former partner has falsely accused you of abusing them in the presence of your children. Maybe you have been falsely accused of abusing your children. Will it impact your parental right to see and spend time with your children? What can you do?

Dealing with family violence accusations

 

It can be a distressing time discussing parenting arrangements (previously known as child custody) with your former partner. Add a false accusation of abusive behaviour, and your stress levels could go through the roof. It is important to take these sorts of accusations seriously. They may impact the orders that a court will be willing to make around the time that your children have with you, at least on an interim basis. However, the fact of accusations being made doesn’t mean you lose any chance of seeing your children.

In the early stages of a court proceeding, orders may be made for the time that children spend with each parent on an interim basis.  Those Orders ordinarily outline the role of each parent, and often set out who will have the primary care of your children until further orders are made. Although it is only the first order, these orders may be in place for up to a year or more depending on how your matter progresses and how busy the court lists are.

How might a false accusation of family violence impact your rights at this early stage?

The court has two primary considerations when it comes to parenting arrangements for a child. The first is to facilitate a meaningful relationship between the child and both of their parents. The second is to protect the child from being subjected or exposed to abuse, neglect, or family violence. However, the court must give greater weight to the second consideration – protecting the child from abuse, neglect, or Family violence. If there are allegations of abuse, neglect, or family violence, the court must look at making provisions to protect the child. This could mean that one parent receives primary care of the child/children, whilst the other parent may have restricted or only supervised time with children, at least until the Court is able to test the evidence concerning the allegations of violence.

During an interim hearing, evidence cannot generally be tested and instead, is weighed up on the probability of the claim.

However, the court is entitled to heed allegations which the court regards as significant and to consider the allegations in the context of an interim hearing.

Our experienced legal team can help you through this process, to ensure your evidence is presented in a way which will assist your case.

Tips for arranging Christmas post-separation

Christmas is a time for joy, love and sharing. If this is your first Christmas post-separation, here’s a few tips to ensure the holiday remains festive for you and your family.  

Ensuring Christmas remains a merry time for you and your kids, post-separation.

 

 

 

Christmas pre-separation, its synonymous with excitement, happiness, and probably Santa. Christmas post-separation, brings a whole new category of synonyms. They don’t have to be negative, but without the right planning and discussions, it can end up being a time full of turmoil.

There are multiple avenues to consider when discussing arrangements with your former partner for time with the children on Christmas Day. The most common arrangements are:-

  1. A time-sharing arrangement. An example would be the children spend 9:00am on Christmas Eve to 12:00pm on Christmas Day with one parent and 12:00pm on Christmas Day to 5:00pm on Boxing Day with the other parent; or
  2. An alternate year arrangement. An example would be that the children spend the entirety of Christmas Day with one parent in any year ending in an even number and with the other parent in all years ending in an odd number.

Both have their pros and cons. You need to work out what works best for you and for your children.

Consider:-

  1. Do you like to go away over Christmas?
  2. Will either of the above arrangements affect your Christmas traditions?
  3. Do you live close to your former partner? Is travelling for a changeover on Christmas Day practical?
  4. Do your children have daily routines/requirements that can’t be skipped on Christmas Day? Will this affect changeover times?

First and foremost, consider how your children will cope with either of the arrangements.

Consider putting a proposal forward in writing to your former partner setting out exactly how the Christmas period could work and ask for your former partner’s opinion and requested changes on your proposal. Negotiate from there.

If you still can’t reach an agreement or if it is better for you to correspond through a lawyer, contact us and we will be happy to prepare a letter to your former partner setting out your proposal and settle an agreement.

Time to be savvy! Re-entering the workplace after separation

Dealing with a separation can be a challenging time. If you are preparing to re-enter the workplace after a number of years away from work, you will want to make well-informed choices about the career path to pursue.

Returning to work after a separation

With the ever-changing state of jobs and the uncertainty that advancements in technology have brought to many fields, it can be difficult to know what career avenue will be best for you following a separation.

A recent article in the Courier Mail’s “QWEEKEND” (12-13 November 2016) referred to a report conducted by the global consulting firm, PwC, indicating that over the next 20 years, 44 per cent of Australian jobs are at risk of disappearing. These harrowing figures are connected to advancements in technology. But it’s not the first-time workers have been hurt by technological advancements. When machinery took over manufacturing factories for mass production, countless jobs ceased to exist. Australian workers again face this threat of job redundancy by computers and technology that are increasingly able to fulfil roles that people previous held.

So, what does this mean for you as a current job seeker?

Although certain professions may begin to crumble away where technology offers a more efficient approach, there is a silver lining: technology is also a great producer of jobs. The internet has made it easier for individuals to create their own brand and ideas, and sell it to the world. We have seen this in the launch of countless bloggers, social media sites and online magazines.

The idea of launching your own business over the internet may sound daunting. You may be surprised though, if you stop and think into your own life experience, just how many great ideas you have that could flourish in your own business. If you’re looking to re-enter the workforce after a separation, an exciting fresh start might be just what you need.

Having your own business though is not for everyone. But whether in a business of your own or as an employee, according to Jan Owen (chief executive of Foundation for Young Australians) and Peter Coaldrake (QUT vice-chancellor), there are a number of skillsets that you will need to help keep you safe during this technological storm.

You will need to be willing to develop multiple careers over your working life. It may be that you look at one or more part time roles. The key will be to develop and enhance qualities of creativity, agility, resilience and adaptability. Owen’s predicts that traditional entry-level jobs will disappear due to automation but that the rise of digital platforms will see us more and more working remotely in our careers.

In order to find a sustainable career path that will be resilient against the advancements of technology down the track, you will need to adapt and upgrade your skills on an ongoing basis. By continually looking to the future trends of technology and being able to offer a range of transferable skillsets, you will put yourself ahead in the workplace.

Recently separated? How to ensure a smooth and enjoyable Christmas for you and your family.

Christmas is a time for celebration, so make sure your separation doesn’t affect your Christmas cheer this year.

Dealing with separation over Christmas

Everyone enjoys their traditions at Christmas – whether it is Christmas Ham and salad, BBQ on the deck or lovely roast pork & turkey cooked in the oven with the aircon on full blast!

If you are recently separated, this year there will be new traditions. Whilst separation can be hard on the children, for some, there will at least be the thrill of having Santa visit twice!

However your children may spend time over the Christmas period with you and your former partner, it is important that, as much as possible, arrangements are made in advance to help make it a great time for them and reduce any prospect of stress for you. You deserve to be happy too!

So, what can you do to help ensure a smooth Christmas that your children can enjoy?

The key is planning, preparation and communication. Here is some helpful tips to get you through the holiday season:

– Communicate with your former partner what the agreement is for Christmas (the time for changeover, who is dropping or who is collecting your children etc.).

– Communicate with your children, ask them what they enjoy the most about Christmas and try to make it happen (remembering of course, that you are the parent! If it’s just not possible for a request to happen – communicate that with them).

– Communicate the arrangement with your family and visitors so they aren’t surprised when the kids pack up to leave for time with the other parent.

– Plan your day so that you have something to do after the children have left to spend time with your former partner. Surround yourself with friends or family or give yourself a special treat.

– Prepare as much as you can the day before so precious moments with your children aren’t wasted running around the house cleaning and cooking to be ready for Christmas celebrations.

Just remember – Christmas should be a happy time for you and your children. Try not to let your children pick up on any stress you may feel. A stressed parent means an anxious child and the only thing your kids should be anxious about, is whether or not Santa will be coming!

Assets

How to avoid whittling away your assets pool on legal bills

Your pool of assets often holds a lot of value, so it’s important to consider how you can best maintain its worth. Here’s some key strategies to keep in mind.

Assets

How to avoid whittling away your pool of assets on legal bills

One way to avoid whittling away your valued assets pool? Settle! However, that may be easier to say than it is to action, dependent upon the issues involved and the personality profile of your former partner.

In fact, the vast majority of people will settle their family law matters. The amount that you and your former partner will spend in legal fees will be influenced by a number of factors. However, it is generally true that the longer your matters remains unresolved, the more it is likely to cost each of you and your former partner in legal fees.

Settling sooner rather then later then may well result in considerable savings to you.

It may be more difficult to settle where the issues involve your children and their living arrangements but you should still consider the areas where you are willing to compromise with your former partner.

If you having to make a property settlement with your former partner, it is useful to bear in mind what are your likely costs if you are obliged to pursue your matter through to a court action.  You should take those likely costs into account when considering what offer you may be willing to make to settle the matter with your former partner.

For more information about property settlement and maintaining your pool of assets, see here. Or, you can contact our experienced team of lawyers today for a free 15 minute consultation.

 

Family Court

What Happens in a Family Court Trial?

Preparing to go to the Family Court? Find out what happens in Family Court to make sure you’re prepared.

Family Court

What happens in Family Court?

 

A trial in the Family Courts occurs only after various steps in the Court process have been completed.

This article is a general guide concerning certain of the major steps in family law proceedings in the Federal Circuit Court of Australia. The process in the Family Court of Australia is somewhat different. What happens in any particular case will depend upon its particular circumstances.

Commencing Proceedings

Unless there are circumstances of urgency (including in a parenting matter, the risk of child abuse), we suggest that you should explore other avenues for resolving family law issues before resorting to court proceedings. For example, you may have negotiations with your former partner, directly or through your solicitors or go through a mediation or collaborative law process. Generally, we recommend that court proceedings, which can be lengthy and are expensive, should be approached only as a last resort.

If you find that it is necessary to initiate an action seeking parenting orders, before filing your application, unless certain exemptions apply, you must obtain a certificate from a family dispute resolution practitioner. That certificate in then included with your application. If you do not file a certificate or an affidavit which demonstrates that the requirements for an exemption apply, the Court cannot accept your application.

There are a number of steps involved before a matter will come to trial. You have the opportunity to reach agreement with your former partner and settle your matter throughout the court process. If you do this, the Court will then issue Consent Orders which confirm your agreement with the other party. Most parties engaged in a court action will settle their matter this way. In this situation, they will not then need to go through to trial but the court action concludes with the issue of the Consent Orders.

Documents

The documents to be initially prepared and filed with the Court in property and parenting matters include:

For the person starting the Action (the Applicant)

  • An Initiating Application – This document includes any interim orders as well as the final orders that the person starting the action (the Applicant) is asking the Court to make. These orders can be orders concerning financial matters and/or maintenance or orders concerning children or both;
  • An Affidavit – This document sets out the evidence of the Applicant as to why the orders which the Applicant seeks should be made.
  • Financial Statement – This document sets out the financial information concerning the Applicant and is filed in a case where property or maintenance orders are sought.

For the Applicant’s former partner (the Respondent)

  • A Response – This document includes any interim orders and final orders that the Respondent is asking the Court to make.
  • An Affidavit – This document sets out the evidence of the Respondent as to why the orders which the Respondent seeks should be made.
  • Financial Statement – This document sets out the financial information of the Respondent and is filed in a case where property or maintenance orders are sought.

First Court Date

When the documents are filed, the Court allocates the first Court date. The time and date for this hearing is included by the Registry on the first page of the Initiating Application.

The first court date will generally be about 6 weeks after filing, allowing time for the Initiating Application to be served and for the Respondent to prepare, file and serve the response documents. The first court date may be earlier for more urgent applications.

On the first Court date, the parties advise the Court about the issues. Generally, the Court will address the following areas:h

  • Procedural Matters – The Court will make procedural orders for the further progress of the matter (such as dates by which certain steps in the proceedings are to be completed). In property cases, these orders will often include a timetable for the provision of information; the exchange of valuations and relevant documents. They will also often provide for a process for determining the assets and liabilities which comprise the net asset pool of the parties as well as for determining the value of relevant assets where value is in dispute between the parties. In property cases, the orders may also provide for conciliation conference where the parties have an opportunity to agree a final settlement or to narrow the areas in dispute. In parenting cases, the orders made at this stage may include orders requiring the delivery of a family report. This is a document which is prepared by a family report writer after he or she has interviewed each of the parents and the children (at an age appropriate level). You will find further information concerning family reports elsewhere in our blog;
  • Interim Orders – The Court will consider any interim orders that may have been sought by either party. Interim Orders may be made at that time or the Court may adjourn hearing of any argument concerning those orders to a later date.There is an opportunity on the first Court date for parties to reach agreement whether on an interim or final basis. If this occurs, the parties present the proposed consent orders to the judge requesting that they be issued whether on an interim or final basis.

Conciliation Conference

The next formal step after the first Court date in a property matter is generally the “Conciliation Conference”.

A Conciliation Conference provides the parties with a formal opportunity to negotiate and reach final agreement or to narrow the matters in issue. Even where parties cannot agree a full settlement of all matters, it may be possible to reach agreement on some issues and to clarify what issues remain in dispute.

If all issues are not settled so that the matter must proceed beyond the Conciliation Conference, further procedural directions will be made (such as dates by which certain steps in the proceedings are to be completed).

Trial

The final step in the proceeding is a trial which is held before the Judge. Each party gives their evidence and makes their submissions. The length of a trial varies dependent upon the complexity of the issues which remain in dispute at the time of trial. Unless the Judge otherwise approves, all evidence must be presented to the Court by way of affidavit.

At the final hearing, the Applicant (or his or her lawyer or Counsel) will outline the Applicant’s case and the Respondent may cross-examine the Applicant or his or her witnesses. The Applicant (or his or her lawyer or Counsel) may then re-examine those witnesses. In the same way, the Respondent (or his or her lawyer or Counsel) will outline the Respondent’s case and the Applicant (or his or her lawyer or Counsel) may cross-examine the Respondent or his or her witnesses. The Respondent (or his or her lawyer or Counsel) will have the opportunity to witnesses. You may then re-examine those witnesses.

Any independent children’s lawyer who may have been appointed may also present evidence to the Court and cross-examine witnesses. Any single experts who prepared a report may be cross-examined by the parties. For example, in a case where parenting orders are sought, parties may wish to cross-examine a family consultant may have prepared a report including certain recommendations for arrangements for children. In property proceedings, the parties may wish to cross-examine single experts who provided reports as to the value of certain assets.

Each party also has the opportunity to give a final address to the Court making final comments in support of his or her case.

Judgement

The Judge will give a decision, including reasons for the decision, following the conclusion of the parties’ respective submissions. However, the decision is often “reserved” so that judgment is not given until a later date. This is usually within three months of conclusion of the trial or at a later date where the Court has a heavy workload. Parties will be informed of the date for delivery of the decision and are required to attend at Court on that date.

Preparing to go to the Family Court can be a stressful time, but one way to reduce that stress is to feel confident and prepared on what will happen during your Family Court matter. If you need advice or are considering taking a matter to the Family Court and want legal advice, contact us. We provide free 15 minute consultations over the phone, so get in touch today.

Divorce

What should you document to help you in getting a divorce in Qld?

Filing for divorce? It’s important to know what documents you should prepare in order to help you in your divorce hearing.

Getting a divorce in Qld

Getting a divorce in Qld?

If what you are wanting to obtain is a divorce, you will need to complete an Application for Divorce and file the Application and other required documents at the Registry of the Federal Circuit Court of Australia. The relevant divorce papers Qld and for Australia, can be downloaded from the Family Law Courts website
www.familylawcourts.com.au

In order to apply for a divorce in Australia, you must have lived separately and apart for a period of not less than twelve months before the date that your application for divorce is filed and there must be no reasonable likelihood of a reconciliation. Either you or your former partner must also satisfy certain requirements regards Australian residency, domicile or citizenship.

You will need to provide the Court with a copy of your marriage certificate when filing for divorce as well as an English translation and Affidavit from the translator if your certificate is not in English. You may also need to provide the Court with a copy of documents establishing Australian citizenship. Dependent upon your circumstances, there may be some further documents that the Court may require.

If you qualify for getting a divorce in Qld or another state, then provided that you supply the necessary information to satisfy the Court, provide the copy marriage certificate with the Application and meet any requirement for service of the Application on your former partner, in the usual case, you can generally expect that your application for a divorce will be granted. The information that is required for getting a divorce in Qld and other states is set out in the Application. You should obtain legal advice regarding whether in your circumstances, any further documents in addition to those identified in this article, may be required to be filed at Court.

You can make a sole Application or a joint Application which your former partner and you will both sign. If you make a sole Application, you must then arrange for the Application to be served on your former partner. There are specific requirements for service.

You will need to show in the Application that appropriate arrangements have been made for the welfare of dependent children but the granting of a divorce does not decide issues about arrangements for your children, property or maintenance.

If you have separated from your former partner, you will also need to make a property settlement which needs to be confirmed by a final and binding agreement. This can be done by obtaining Consent Orders which are issued by the Court but you do not need to go to Court to obtain them. You may also wish to have Consent Orders for arrangements for your children or a parenting plan That plan is not a legally enforceable document but can help with help with confirming arrangements for children that you and your former partner have agreed in principle.

For more information on getting a divorce in Qld or Australia, click here. Or contact our family lawyers today for a free 15 minute consultation.

Brisbane Family Law

Are you in a De Facto Relationship? Our Brisbane Family Lawyers explain the difference.

There can be a lot of unknowns as you try to approach family law. If you’re not married, you may be particularly confused as to whether you hold any rights under family law for assets and property previously shared with your former partner. Our Brisbane Family Law experts break down ‘De Facto’ relationships, and what legal rights individuals in a De Facto relationship may hold.

Brisbane Family Law

Brisbane Family Law Firm

Why is it important?

If you never tied the knot with a ring and separated after 1 March 2009, you will still have the same rights and responsibilities under the Family Law Act 1975 as a married couple have provided that at law you were in a de facto relationship that meets the requirements of the Act.

The importance of this is that your entitlements and considerations under that Act will apply in any negotiations with your former partner or if you find that you have to take a legal action, you may have your claim for settlement of property or arrangements for your children considered by the Family Court. Read on to find out from our Brisbane Family Law team what qualifies as a de facto relationship.

Legal Requirements for a De Facto relationship

You and your former partner:

  • Must not be married or related;
  • have or have had a relationship as a couple living together on a genuine domestic basis for at least 2 years (or a lesser period if there is a child of the de facto relationship; the party making a claim made substantial contributions to the relationship and serious injustice would be caused if Orders were not or the relationship is or was registered under certain State law); and
  • meet the residency requirements which you can read on our blog “De facto Relationships and bringing a claim under the Family Law Act 1975”.

Think it may apply to your situation? Our Brisbane Family Law team help break down these points further.

A couple living together on a genuine domestic basis

Some people may be surprised to find that the law will consider that they are in a de facto relationship. Still others may believe that they have a de facto relationship but later find that a Court does not take that view.

Factors that are considered when working out whether people are in a de facto relationship include:

  • the length of the relationship;

the nature and extent of their common residence. (Parties can be in a de facto relationship even though they do not live together in the same residence at all times. However, it may be less likely that there would be a finding of a common residence where the claimed common residence is not on the facts regarded as a party’s home; where a party does not have keys to the property claimed to be a common residence; where a party does not have the other party’s permission to use the property which is claimed to be a common residence to entertain his or her friends) and where the parties do not jointly host social occasions at the claimed residence);

  • whether there is a sexual relationship (It will not necessarily matter that the sexual relationship may not be exclusive or that a party may have sexual relations with other persons during the currency of the de facto relationship);
  • the degree of financial dependence or interdependence, including any arrangements for financial support between the people involved. (This factor may be regarded as neutral where a party of considerable wealth provides separate accommodation rent free and some financial support to the other party who claims to be in financial need and where that other party does not use any of his or her financial resources for joint endeavours);
  • how property is owned, used or acquired;
  • the extent to which there is a mutual commitment to a shared life;
  • whether the relationship is or was registered under prescribed law;
  • the care and support of children;
  • the reputation and public aspects of the relationship.

It is not necessary for all of these factors to be present before the law will regard that parties are in a de facto relationship. The circumstances of the particular relationship must be considered and no two relationships are the same. The following are given as examples only of how the Courts have considered some different relationships:

In the first example, a Court found that there was a de facto relationship where parties had cooperated in the management of property; shared a common residence, bedroom and business interests; each cared for a child of the relationship and were known in public as a couple.

In our second example, a de facto relationship was found to exist over the period when the parties had cohabited (though for less than 2 years); acquired joint property as well as a shared franchise business and shared holidays away together. The de facto relationship existed even though the de facto wife married a third party and for a time ceased sexual relations with the de facto husband.

In our third example, a Court found that there was no de facto relationship due to a number of factors including the clandestine nature of the relationship and that the parties both strived to ensure that they were not publicly identified as being together.

Our last example involved a man of considerable wealth who had provided financial support to the applicant and separate rent free accommodation. The Court refused to make a declaration that a de facto relationship existed. In that case, the parties had been in a relationship for about 5 years. No property was jointly owned by the parties and the parties did not have a common residence or any mutual commitment to a shared life.

The Court found that the respondent had made a commitment to an arrangement whereby he and the applicant enjoyed a sexual and social relationship and he financially supported her. On the evidence, the Court found that the applicant had a commitment to a life where she and the respondent would eventually live together once they were married. There was no mutual commitment between the parties; each party was committed to a different relationship.

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