Beware that Suburbia Romance, Part 1
Where romance is gone : De facto Issues on Property Settlement
It is not an everyday experience, but it does sometimes happen that romance blooms over the neighbourhood fence. Picture those languid early evenings in summer as you are out watering the garden. Who should appear from behind the fence but that neighbour who has been catching your eye these last months, suggesting that you might enjoy a vino or two together and watch the sun go down?
Before too long, you are seeing each other, enjoying romance, dinners out and sometimes a lazy dinner at home in front of the TV. It is cosy and develops into something more permanent, staying over at each other’s place and even holidaying together with your children. Certainly, by then, it is a comfortable relationship between two consenting adults, but at what stage is the dating line crossed and a couple can be considered a de facto couple?
Why does it matter how the relationship is “labelled”? Well, perhaps not at all so long as the relationship is thriving. If however things do not go so well and the relationship breaks down, one party may seek to claim an interest in the other person’s property. It will then be very important to know whether or not the couple were de facto.
If you have been in a de facto relationship then, depending on a number of factors including the length of the relationship, your former partner may have a claim for a division of property against you.
In this blog, we discuss our fictional couple, Bob and Kate who had been in a relationship sometimes enjoying romance for some 6 years before their relationship finally ended. We look at certain factors that will be considered to determine whether or not a couple are or have been in a de facto relationship. However, each case is different and regard must be had to the particular circumstances of a couple’s relationship. If you would like advice about your relationship, contact our family lawyers who will be happy to assist you.
There was no doubt that Bob had loved Kate and that there had been some romance in their relationship. They had been going out for a year or so when Bob determined to purchase the house next door to hers. Kate had not been so sure of having Bob in such close proximity to her and her children but it was hard for her to stand up to Bob when he had made his mind up. It had been the same when she had been recovering from major surgery and Bob had insisted that he effectively move into her home and care for her. She had told him it wasn’t necessary; she had close family to provide the care she needed. But Bob would not hear of it. He had all but moved in, staying over at least 4 times per week and often more.
When Bob suggested that he buy the house next to hers perhaps having romance in mind, it was hard for Kate to tell him that she really didn’t want that. Instead, she had even assisted him in the purchase by making over a hundred thousand dollars available to him to purchase the property. He had asked for her help and she had found it too hard to say no. She had been clear with Bob that it was a loan but it was only after she transferred the monies into his account that she began to have misgivings. It was then that Kate asked Bob to execute a mortgage over the property in her favour. Bob had done that willingly, telling Kate that he didn’t want her to worry for a moment about the monies she had provided for his property purchase.
Kate was not a particularly robust person, physically or emotionally and it had taken a good deal on her part to insist on Bob providing the mortgage. However, when Bob later told Kate that he needed her to release him from the mortgage, Kate did so.
Bob was assertive and taken to making flamboyant or generous gestures towards Kate, which at times were unsolicited. He was emotionally needy and who would find it difficult to accept Kate’s rejection of him.
Kate saw Bob as having a controlling and manipulative personality. She felt that he effectively imposed himself on her life at a time when she was vulnerable being seriously ill and undergoing major surgery.
He could be coercive and controlling; even violent towards Kate. There had been one occasion when he had been heavily intoxicated and raped Kate though he denied it vehemently afterwards. On a later occasion, in a rage, he had reversed his car down the driveway of Kate’s home, very nearly running over her and her daughter. It was little wonder then that Kate saw Bob as a violent and abusive person of whom she was fearful for her safety. However, though she had been even more reticent in the relationship after the rape had occurred, it was not until the incident in the driveway that she resolved more fully to break with Bob. However, Bob was not a man who easily accepted a no, even when Kate had indicated to him that she would like for them to be only friends.
Over the years, Bob had been included on Kate’s annual holiday with her children as well as at Christmas and for birthday celebrations. Bob had taken Kate out for dinner quite regularly at times and had shouted her and her children to quite a lavish holiday a few years previously. On that holiday, he had presented her with a diamond ring which h would later claim had been their engagement ring though Kate did not agree it had been anything of the sort.
However, they never maintained any joint account or did any financial planning together. They did not own any property together, not even a motor vehicle. In fact, Kate could not recall that they had ever bought any furniture together.
Whilst Bob liked to consider himself in a quasi-parental role to her children, neither Kate nor her children saw him in that light. The children’s natural father was very much a part of their lives and provided significant financial support for them.
Bob liked to imagine too that he largely supported Kate as well as the children but it just was not the case. Bob was given to imagining for himself a much larger role in the lives of Kate and her children than he in fact occupied.
Certainly, when Kate updated her will and executed a power of attorney when she was told that she required major surgery and that she may not survive it, there was no mention of Bob. Instead, Kate left her entire estate to her children and appointed extended family members as attorneys and guardians for her children. The same was true of the persons who were the nominated beneficiaries of her superannuation; it was always the children and never Bob. In our next blog, we discuss how the law considers whether a couple can be said to be or have been in a de facto relationship.
How Can LGM Family Law Help You?
To learn more about what the court considers in determining if you are in a de facto relationship regardless of any romance, read here. For tailored legal advice from our experienced separation and Brisbane Divorce Lawyers, call us today on 3506 3651.