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Are you in a de facto relationship?

April 6th, 2021

The answer to this common question is not as simple as you might expect.  A person will be considered to be in a de facto  relationship if, looking at all the circumstances of the relationship, they have a relationship as a couple and are living together  on a “genuine domestic basis”.

The most well-known test for determining whether two people are in a de facto relationship, is whether they have been living together as a couple for more than two years.

It is important to know that a couple can be living together for less than two years and still be considered to be in a de facto  relationship.  Most commonly, this happens where the couple have a child together, or have intermingled their finances, such as by purchasing a property together.

A lot of people want to avoid being in a de facto relationship because they believe their partner will automatically be entitled to  a share of their assets.  This is not true.

Even if you are considered to be in a de facto relationship, your partner is not necessarily entitled to a share of your property or  assets.  The court must first determine whether or not an adjustment of property between the spouses is necessary to do justice between them, based on their respective contributions to the relationship and their future needs.  In some circumstances the  court will not intervene if the property interests as they stand are just and equitable.

If you would like to discuss your relationship, property settlement or obtain advice on your family law matter, contact
one of our family lawyers today.

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Debunking 4 common family law myths

July 30th, 2019

There are many misconceptions or “myths” in family law that can lead to separating couples making poor decisions that are not in their best interests.  We debunk some of these common myths below.

Myth 1: I am not married so I don’t need to have a property settlement”
Not true; save for very limited exceptions, all de facto and married couples are required by the Family Law Act to formally end their financial relationship through a property settlement within a specific time period.  If in doubt, it is always best to seek advice on whether a formal property settlement is required.

Myth 2: “Property acquired after separation is not relevant”
This is also incorrect.  Whilst the inclusion of assets acquired post-separation will always depend upon the circumstances surrounding the acquisition of the asset, as a general rule, the asset will usually be included in the property pool.  For example, in a recent court case, the court made a decision to include in the property pool, an inheritance of $715,000.00 received by the husband five years after separation.  This is a classic example of why property should be divided and a property settlement formalised soon after separation— not years later.

Myth 3: “If my ex and I agree on the division of our assets, we do not need a lawyer”
Once an agreement is reached, it is important that it is formalised in one of the two ways recognised as binding and enforceable by the family courts.  The parties can apply to the court for consent orders or they can execute a binding financial agreement in accordance with the family law legislation and regulations.  It is important that legal advice is sought in the drafting of these documents.  If a property settlement is not formalised in one of these ways, the family courts will not recognise that a property settlement has occurred, which may leave parties vulnerable to a later court application seeking a further adjustment of property interests.  There are additional benefits in formalising a property settlement including eligibility for an exemption on transfer duty on any property transferred between spouses.

Myth 4:  “Most property settlements are 50/50”
This is another common misconception.  What percentage of the property pool a spouse is entitled to is calculated by applying complex legal principles and precedents.  It includes consideration of many factors.  We encourage clients to obtain legal advice as to their entitlements before discussing the division of their property with their former spouse.

At Miller Harris Lawyers, we understand that separation is stressful and emotional.  We work with our clients to provide strategic legal advice which empowers people to make informed decisions about the future and to move forward with their lives.  If you are going through a separation, contact our expert family lawyers today on 07 4036 9700 to enquire about our fixed fee initial consultations offered at both our Mareeba and Cairns offices.

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