At Coode & Corry, we are often asked, when does someone become a de facto? The answer we give is, that there is no simple definition. While a marriage is a well defined event occurring on a certain day, the law surrounding when a de facto relationship commences is far more elastic.
In a recent case, a couple who had never ‘lived together’ and had maintained separate addresses, were deemed to be a de facto couple. Living together (having the same address) is not a conclusive requirement when determining a de facto relationship, either in Estate matters or Family Law matters. Equally, having a relationship for two years is not necessarily determinative.
The Family Law Act gives a list of tests when it comes to defining a de facto relationship. On this list are factors such as, how the parties present to society (do they tell people they are partners?), how long have they been together (have they been together for two years?) and do they have the same address. None of these factors will, in themselves, determine whether the people are in a de facto relationship.
What does this mean? If you have a partner, or a serious relationship, you should speak with a lawyer about what will happen to your assets in the event that the relationship breaks down while you are both alive, and/or what would happen upon the death of one of you.
The law places a high emphasis on the moral obligation to look after a widow, whether de facto or married, and in a family law breakdown de factos are now given the same rights as married couples in any long relationship. The decision not to marry the person does not disentitle that person.
As a pragmatic matter, the time to enter into any sort of Financial Agreement dealing with the assets on breakdown of the relationship or death of one party is at the beginning of the relationship. As the relationship develops these conversations typically become more difficult, the other party is typically more offended. A dispute between the children of a first relationship vs. the widow of a second relationship, is statistically the most likely situation to end in litigation. We see many couples who, at the beginning of these subsequent relationships, are happy to ensure that children are provided for by entering into specific agreements. Equally, if you want your new spouse to get the Estate instead of your children you should still speak with us and both of you should still prepare agreements during your life, with independent legal advice, setting this out, in order to avoid your Estate being reduced by the cost of any unnecessary court case.
You should speak with Janis Donnelly-Coode at Coode & Corry Solicitors at the beginning of a new relationship about steps that you should take to clarify what will happen to your assets in the event of a relationship breakdown, or for Estate planning purposes.