Are you currently in a relationship but not married? Maybe you're in a relationship but not living together? Worried that your partner can take your assets? Well, just because you're not married and not living together, your partner may actually be entitled to make a claim for property settlement or spousal maintenance.
HOW DO I KNOW IF I'M IN A DE FACTO RELATIONSHIP?
You're deemed to be in a de facto relationship if you are in a relationship as a couple and are living together on a "genuine domestic basis" and not legally married. However, you could also be in a de facto relationship, if one or both of you are still legally married, in a de facto relationship with someone else or are not living together on a full time basis.
We don't live together....
You don't have to be living together for the Court to determine your relationship as de facto. This is just one of the factors that the Court will consider.
The Court will also consider the duration of the relationship, whether a sexual relationship existed, the degree of financial dependence, ownership of property, the degree of mutual commitment to a shared life and more.
PROPERTY SETTLEMENT & SPOUSAL MAINTENANCE
If you want to make a property or spousal maintenance claim, you have a limit of two years from the date your relationship ended and you must prove that your relationship lasted for at least two years.
If you and your de facto partner had a child together, if one party made substantial contributions or if you registered your relationship, the proof of a two year relationship is not needed.
If you're unsure of how your relationship could impact your personal assets, call us today to discuss your circumstances and how we can assist in protecting your assets.
It's important to know that there are specific time restraints on when you can approach the Court to make orders. Although this may be the last thing you would want to think about during a separation, it will save you potential future issues.
You have 12 months after your divorce order is granted to apply to the Court for property orders. This is generally why we recommend finalizing the distribution of your property prior to filing an application for divorce.
If you are in a de-facto relationship, you have 24 months after the date of your separation to apply to the Court.
The above time restrictions also apply for Spousal Maintenance orders, that is; 12 months after your divorce is final or 24 months after the date of separation in a de-facto relationship.
I MISSED THE DEADLINE, NOW WHAT?
If you missed the timeline to make an application, you will need to ask the Court for "leave". This means that you must ask the Court to allow your application outside of the timeframe.
You will first need to explain to the Court why you could not or did not, make the application within the time frame due to hardship. For example, you were prevented from making the application due to mental or emotional difficulties or what you could not receive legal advice.
Secondly, you need to demonstrate to the Court that you have reasonable prospects of getting the orders you wish to seek if you were allowed to proceed with the application.
Finally, you need evidence to show the Court that you or a child of the relationship will suffer 'real and material loss' if the application cannot proceed. For example, that you do not have enough available assets to secure a place to live, or that you will not be able to secure appropriate education for the child.
We can help you prepare the application for leave if you have run out of time. We will ask you a range of questions to understand your position and draft your affidavit to include the areas of hardship you are experiencing.