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Property Settlement Lawyers Brisbane

Will I have a claim for property settlement following the breakdown of my relationship? | Family Lawyers Brisbane

Q: Will I have a claim for property settlement following the breakdown of my relationship?

This is an important question and particularly where you have not been married to your former partner.

We have seen in last week’s blog that the Court may only make an order dividing property where the persons affected are not married, after the breakdown of a de facto relationship.

In order for a relationship to qualify as a de facto relationship at law, not only must the parties not be married or related by family, they must be a couple living together on a genuine domestic basis, having regard to all the circumstances of their relationship.

The term “genuine domestic basis” is not a term of art but is to be given its ordinary meaning.

We outlined for you in our blog last week some of the factors or circumstances that will be of relevance where a court is determining if a de facto relationship existed.

It is not necessary that any particular circumstance is found in order to determine that a relationship is a de facto relationship.  The Court may have regard to any matters that seem appropriate to the Court in the circumstances of a particular relationship and may attach what weight (or importance) that the Court considers appropriate to any particular circumstance.

The Family Court of Australia in a decision in 2011 has said that for a de facto relationship to be found to have occurred, there must be the manifestation of “coupledom”, which involves the merger of two lives.

The Court found that a continuing cohabitation in a common residence is not necessary to establish the continuation of a “de facto relationship”, at least where the parties have lived together and have not effected a permanent separation. Nevertheless, the definition of “de facto relationship” suggests that, usually, the parties should have, at some stage, been “living together as a couple on a genuine domestic basis”.

The Court took the view that the fact that the parties have never lived together in a common residence was an indication that they have not “lived together as a couple on a genuine domestic basis”. The Court considered that that indication would be “especially significant where parties have not shared the common burden of maintaining a household”.

The fact that one or both of the people involved may have at some stage intended eventually to marry would not in itself lead to a conclusion that they were involved in a de facto relationship.

The Court considered that there must have been a manifestation of a relationship where “the parties have so merged their lives that they were, for all practical purposes, ‘living together’ as a couple on a genuine domestic basis”.

In next week’s blog, we will look at some examples of relationships where the Court has found that a de facto relationship did not exist. Remember, it is very important to know whether or not you are or have been in a de facto relationship. Unless you have been, you will not have a claim for property settlement following the breakdown of the relationship.

Family Lawyers Brisbane

Family Lawyers Brisbane

What next?

Contact us for advice whether your relationship is likely to be considered a de facto relationship at law and what is your likely entitlement for the division of the net assets that you and your former partner hold, whether together or in your separate names.

Our experienced team of Family Lawyers Brisbane, can offer you tailored legal advice, to help you move forward in life. Give us a call today to receive a FREE 15-minute consultation.

 

Reducing conflict following a separation

How to keep conflict at bay following a separation. 

Avoiding conflict following a separation

You may dread receiving emails or texts from your former partner. There may be sense of shock every time you see his or her name come up on your screen for fear of what new accusation there may be against you.  Changeover times for the children may be full of stress and tension for you having to deal with your former partner.

What to do in that situation?

One of the “mantras” of the Family Law Act is best interests of the children.  “Best interests” is the paramount consideration guiding a Court when determining what should be the care arrangements for children.

We would probably all agree that best interests includes keeping children out of any conflict between parents following a separation.   And not only for the sake of children.

Continuing conflict with your former partner can also keep you from being able to move forward with your life. It can erode your confidence over time and leave you feeling isolated from friends and family.

Sadly, you may find an escalation in conflict with your former partner as you seek to resolve your family law issues following separation. That is not an uncommon experience but the good news is that tensions often settle down after you have finalised the division of property or care arrangements for the children.

In the meantime though, it is important that you do what you can to reduce conflict with your former partner and the stress that that can cause for you and your children.

Often, that conflict is seeded in tensions that developed during your relationship and has a long and complex history. It may be that truly resolving that conflict would require real change in both you and your former partner.  Where you are separated, you need to be realistic then about what you can achieve. Since you can’t change your former partner, any reduction in conflict is going to depend upon change in you and your approach to the conflict.

Here are some suggestions which we hope you will find helpful:

  1. Try to bury the past: This may be easier said than done as you may feel very strongly that things have not happened – and maybe still are not happening- as they should in your former partner’s dealings with you. It will help though in your current communications if you do not make comments about what has gone wrong in the past. You can’t control what comments your former partner may make but if you can do this, it should help defuse ongoing tension.
  2. Be careful in your choice of language: As much as possible, be polite to your former partner in the way that you address him or her. You may feel that your former partner has been at real fault in his or her treatment of you. You may well be right. However, if you use language of blame or accusation directed at your former partner, it will be hard to see improvement in the way you communicate. Even if he or she continues to be rude to you, if you can keep communications polite and not “fuel the fire”, it will likely help you in your feeling about communications. It is harder too for the other person to keep on the same negative track if you are not responding in kind.
  3. Making some mutual ground rules: You should give some thought to what situations or issues may be commonly causing conflict between you. For example, it may ease tensions if you both set some ground rules such as not making calls to each other after a certain time of night or agreeing that you will each only use certain language when addressing each other.   If you are in the middle of trying to reach a property settlement or formal arrangements for your children, it may ease tensions if you agree that you will not speak to each other about these issues but that all communications on those areas must be by email between you or conducted only through your solicitors.
  4. Making your own ground rules: If you are finding that your former partner is sending you a barrage of emails or texts and you are feeling harassed, you should carefully consider if it is really necessary for you to reply to a particular communication before you go ahead and do that. Choose to respond only when it is essential for arrangements for the children.
  5. The bottom line: If your former partner persists in conduct that leaves you feeling threatened or at risk, then you may need to take other measures. Contact us for advice in this situation.

 

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.

Want to legal advice?

If you’re after more advice on de facto relationships, click here. For information on other services see our divorce law, separations, property settlement or child custody pages. If you’re looking for tailored legal advice, our Brisbane Family Law team are here to help. We offer free 15 minute phone consultations to help you get started in the right direction with your family law matter. Call us today.