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Perth Office: 1st Floor, 231 Adelaide Terrace PERTH WA 6000 Postal: PO Box 3263 PERTH WA 6832 Tel: (08) 9218 9993 Fx: (08) 9218 9557 enquiries@drllegal.com.au www.drllegal.com.au
DE FACTO RELATIONSHIPS
Couples live together without being legally married. This is often called de facto marriage. The term de facto means in fact. There is no single legal definition of the term de facto. De facto relationships may be recognised for one legal purposes but not another. Those purposes may change as the relationship changes.
If you separated before 1 December 2002, or do not meet the other condition, then you cannot apply to the Family Court to ask it to settle any disagreements between you and your partner relating to property or financial matters. This will be discussed later under the heading Property Arrangements: Couples who separated before 1 December 2002 or do not otherwise qualify for property settlement in the Family Court.
If you have satisfied the conditions to enable you to make an application to the Court, there will be three situations in which orders will be made: There was a de facto relationship lasting at least 2 years; There is a child of the de facto relationship under 18 years old and there would be serious injustice to the partner caring or responsible for the child if no order were made; or The person applying for property orders has made substantial contributions to the property or the welfare of the family and would suffer serious injustice if no orders were made.
It doesnt matter that you and your partner are the same sex, or legally married to someone else or in a de facto relationship with someone else. What does substantial contribution to property, or the welfare of the family mean? If you need to satisfy the condition that substantial contribution to property or welfare of the family has been made, you will need to get legal advice. Some things for you to think about before getting legal advice include: What direct or indirect financial contributions to property of the relationship have you made? What direct or indirect non-financial contributions to the property of the relationship have you made? What contributions have you made to the welfare of your family including as a homemaker or parent?
Where in Australia were you living when you made the contributions?
Property includes all the property of you and your partner whether owned individually by you or jointly with your partner or with a third party, for example, any interest in real estate, businesses, motor vehicles, shares, savings, furniture and chattels (pots, pans). Property does not include entitlements in the future such as dividends, superannuation or unpaid compensation claims. Once the property has been identified, it then needs to be valued. 2. Past contributions
After determining the value and nature of the property, the next stage is to consider the contributions to your property made by you and your partner. Contributions include financial and non-financial, and direct and indirect. Examples of these are, wages, inheritance,
previous savings, previously owned property, home duties, parenting duties, house maintenance and gardening. 3. Future needs
The final stage is to consider the future needs of you and your partner and then adjust the property taking into account all three aspects of your property settlement. An examination of future needs may include: The age and state of health for you and your partner; Income, financial resources and ability to obtain work; Whether you have children in your care; You and your partners financial needs and obligations; Your standard of living; You and your partners eligibility for pension or benefits; Whether you or your partner has begun cohabiting with another person and the financial circumstances relating to the cohabitation.
Negotiating a settlement It is always best to try to negotiate a settlement with your partner rather than going to Court. During negotiation, you and your partner should consider dividing the property the same way the Family Court would, i.e. consistent with Family Law principles referred to above. If you reach an agreement, you should each get legal advice (separately) before formalising it. If an agreement is reached you may Keep the agreement as an informal arrangement, but remember, an informal agreement will not be enforced by the Family Court, and may leave you open to later redistribution of property by the Family Court. Apply to the Court for Consent Orders using a Form II. Enter into a financial agreement in accordance with the Family Court Act.
Financial Agreements are agreements under the Family Court Act. They operate similarly to contracts, and can be made before or during a relationship or after a relationship has ended. These are discussed under a separate heading below, as different legal principles apply.
A negotiated settlement avoids the potentially high cost of Family Court proceedings. Some people benefit from assistance through mediation; however, if you and your partner cannot reach an agreement and there is no binding financial agreement, you can apply to the Family Court for a property settlement. An application made to the Family court prior to any genuine attempt to resolve the dispute may incur additional cost penalties.
If binding a FA can only be set aside in limited circumstances, including: The agreement cannot be carried out. The agreement was obtained by fraud (including non-disclosure of a material matter) or it is void/voidable/unenforceable according to contract law. There has been a significant change in circumstances and as a result a child or the resident parent would suffer hardship if the agreement were enforced. You or your partner behaved unfairly in relation to the making of the agreement. If enforcing a FA, the court applies contract law, not the Family Court Act principles.
Property arrangements: Couples who separated before 1 December 2002 or do not otherwise qualify for property settlement under the new laws
The following information applies to you if you either: Or Separated before 1 December 2001 Do not meet the conditions that the Court requires as mentioned above.
Their starting point is generally that the legal owner is the person whose name the property is in. It is up to the person making a claim to show that the property, is in fact, theirs because they paid for it or have some other legal claim. If both parties are willing, they can negotiate their own division of the property. The parties may have an agreement which covers how their property will be distributed. They need legal advice about whether their agreement is binding before relying on it.
What is property?
Property may include things such as household items, money in bank accounts, cars, land, houses, investments or shares. It does not include superannuation or unpaid insurance or compensation claims.
Negotiations or Court
It is important to negotiate a settlement of de facto property rather than go to court because legal procedures are expensive, complicated, lengthy and uncertain. Help in negotiating, or persuading the other party to agree to negotiating, may be obtained through the Citizens Advice Bureau, Relationships Australia, Centrecare or a Community Legal Centre.
Which Court?
If negations fail (or never begin), and the value of property is high, it may be necessary to start procedures at court, however, it may be possible at any time to recommence negotiations and settle the matter by agreement. The kind of property involved will dictate which court deals with the claim, for example: Other than houses and land etc, property up to the value of $25,000 dollars may be brought in the Local Court. Where property (not including land) is valued between $25,000 and $250,000, the case may be heard in the Supreme Court.
Renting Property
Whoever signs the lease agreement is the legal tenant. They are liable for paying the rent and keeping the terms and conditions of the lease agreement. If you both sign the lease, you are both equally liable for paying the rent and keeping to the lease. If either or both of you breach the lease, the property owner can sue any one or both tenants.
Owing property
In both names Many de facto couples buy a house, flat or land together. If you do this as joint tenants, each person owns the whole property and ownership passes to the surviving party when one dies.
If you own property as tenants in common, each person owns only the portion described on the title deed, i.e. equal shares. Each person may sell their share in the property or leave it to someone else in their will. If your de facto relationship ends, try to agree about: If the property should be sold and how to divide the proceeds; If one person will keep the property (transfer into one name) and how much to pay the other for their share; and (For both the above) who will pay the stamp duty and other costs.
Caveats
A caveat is a notice, registered with DOLI (Department of Land Information), and placed on the land title to stop dealings with that land. The owner is notified when a caveat is placed on their property. If the owner tries to mortgage or sell the property the person who lodged the caveat (the caveator) is notified. The caveator may have to justify the caveat (prove their interest in the property) or else pay the legal costs of the owner in having the caveat removed and any associated costs or lost profits. The owner may object to the caveat and the caveator will then have to justify the caveat and apply to the Supreme Court for an order to extend the caveat.
It is important to get legal advice because there may be legal costs associated with lodging a caveat where there are no grounds for doing so.
Household items
Furniture, electrical equipment and other household items normally belong to the person who bought them. Usually, it is not worth going to court for chattels and negotiation or mediation is preferable.
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Court proceedings are expensive and may be complicated, so it is important to get advice about legal costs and compare that to the value of the items in dispute.
Social security
If you get a Centrelink benefit or pension you must tell Centrelink when starting or ending a de facto relationship. It may affect how much money you get. If you dont tell Centrelink about a change in your circumstances you may be overpaid. This could mean being charged with a criminal office or having or benefit reduced. To contact Centrelink go to http://www.centrelink.gov.au/ For help dealing with Centrelink contact the Welfare Rights and Advocacy Service at http://www.wraswa.org.au/
Income tax
Australian income tax laws recognise de facto partners. In some cases you can claim the same deductions as a married person. For more information on income tax go to http://www.ato.gov.au/
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You should consider cancellation of any authority to use their account by notifying the bank in writing or by fax.
Debts
Generally, a person who incurs a debt is responsible for it. In some cases where two people have incurred a debt jointly (e.g. on a rental lease, hire purchase or credit card) the party recovering the debt may have the right to sue EITHER person for the whole amount. If you are in this position you will need legal advice.
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Children
The Family Court deals with any dispute about children. Both parents have joint parental responsibility for their children. This can only change by an agreement filed with the Family Court or by an Order of the Family Court. Joint parental responsibility is a legal principle that applies to all parents. It doesnt matter if they are divorced, married, never married, or never lived together. Parents who dont live together need to decide about: Who the children live with; Who will have responsibility for the childrens day to day care, Who will have responsibility for the childrens long term care, and Contact the children will have with the parent they dont live with.
These can be decided by agreement or by the Family Court if parents cannot agree. Get legal advice about your rights and options before you start negotiating. Always seek legal advice before you sign any agreement.
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They were receiving/entitled to receive maintenance from the deceased at the time of death.
Legal advice should be sought about making an application under the Inheritance (Family and Dependants Provision) Act 1972 (WA). Applications must be made within 6 months of the Grant of Probate or Letters of Administration. This time limit may be extended in some circumstances. Any will made during a previous marriage will remain valid even after divorce (unless remarriage occurs) and a commencement of a de facto relationship. Making a new will can only change this situation.
Fatal accidents
If someone dies in an accident and the death is caused by a wrongful act, neglect or default, the surviving de facto partner can claim damages for the loss of the deceased persons income under the Fatal Accidents Act. For a de facto partner to make a claim, you must show that You lived together on a genuine domestic basis for at least 3 years before the fatal accident, or There is a child of the relationship who was dependant on the deceased at the time of the death.
Workers compensation
A person may be able to claim compensation on the death of their partner at work. Legal Content updated 15/3/2005
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