News

News

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.

More

Resigning as a Director? Don’t be late or the last

March 4th, 2021

From 18 February 2021 changes to the Australian Law were introduced by the Treasury Laws Amendment (Combating Illegal Phoenixing) Act 2020 meaning that:

  1. if a director’s resignation is not notified to ASIC within 28 days, the resignation will take effect on the date of notification; and
  2. a director’s resignation will be rejected if it leaves the company with no director.

The legislation is one of a raft of measures aimed at preventing illegal phoenixing – stripping a company of assets and starting another in its stead (the phoenix).  Other more substantive reforms are already in place but these recent procedural changes will affect all directors, not just those involved in creditor-defeating restructures.

Company Director Resignation

ASIC must be notified within 28 days of a director’s resignation.  Previously, a failure resulted in a late fee; now the consequence will be that the director’s resignation date will be recorded as the date of notification to ASIC.  ASIC will override the actual date of resignation with the lodgement date.  This change is to prevent improperly ‘backdating’ a resignation to avoid director liability.

Regardless of their actual resignation date, directors will now be deemed to have continued as a director until the notification date, and will be responsible for actions taken by the company during that time.

An application may be made to ASIC or the court to fix a different resignation date.  This is discretionary and there are time limits for the application.

Resigning directors should make sure that their company lodges notice of resignation on their behalf, or lodge directly themselves to make sure their tenure is accurately recorded.

Last Man (or Woman) Standing

A director’s resignation will now be rejected by ASIC if, at the end of the day on which a director resigns, there will be no other directors of the company.  This measure is designed to prevent directors resigning to avoid the consequences of company insolvency.

Directors should be mindful of this where there is an internal dispute or financial difficulty.

For more information or legal advice about your role as a company director, please contact Miller Harris.

More