ARE YOU IN A DE FACTO RELATIONSHIP
People in subsequent relationships are often keen to protect the property they have amassed for the benefit of their children when they die. Many believe they will best do this by not living full time under the same roof with a new partner. By managing the relationship in this way they think that the other person will not be legally seen as a de facto and so s/he will not have a claim on their property or super down the track.
This may not work.
Recent cases indicate that there may be a finding of a de facto relationship even though a couple may co-habitate only for a few days each week. It is not seen to be essential that there be unbroken common residence. In fact, one partner can spend some nights each week elsewhere and still be deemed to be a de facto. Some element of common residence is essential, however, and this will ordinarily include elements of interaction and sharing while engaging in activities associated with occupying the same place.
Ultimately, a court will consider the nature of any particular union, and whether there was a merger of two individual lives into life as a couple. It is the merger of two lives which is the core of a de facto relationship.
What does this look like?
It focuses to a large extent on a mutual commitment to a shared life and a couple’s interactions at the level of everyday living such as:
* living and sleeping together under the same roof on an ongoing basis
elements of interaction and sharing whilst engaging in activities associated with occupying the same place
presentation to friends and family as a couple
joint holidays, with and without children
frequent contact by telephone, text messages and emails when apart
sharing domestic jobs around the house
intermixing finances
a sexual relationship
being invited to, and attending, functions together.
The court looks at all the circumstances and not all of the above might be evident.
Weston v Public Trustee provides an example of what the court the deemed was a borderline case, but a de facto nonetheless. The circumstances were that the plaintiff had stayed with his partner every weekend and then, after he retired, he would go back to his own home for a few days. He would always let her know whether he was going back to her place or staying at his. When he was still at work if he left from her place she would send him off with food to heat up for the following night.
If you are, indeed, in a de facto relationship then you may need advice regarding potential options for protecting your estate for your children: Flanagan Legal Newcastle at flanaganlegal.net.au can provide you with such advice.