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De-facto relationships

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Office: 220 Stirling Highway, Claremont WA 6010

Postal: PO Box 897, Claremont WA 6910

Phone: 08 6141 3227

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Everyone who marries does so with the intention that it will last forever. However, life has its twists and turns and things change over time.

In the past, married people who wished to separate had to prove that they qualified for a divorce. The most common criteria were adultery, cruelty, or desertion without cause for at least two years. Applicants had to prove that their estranged spouse had committed a matrimonial offence while they themselves had not (or if they had, it should be overlooked). Failing to prove their case meant having to stay in their unhappy marriage.

Australia is a no-fault jurisdiction. It does not matter anymore who did or did not do something during an unhappy marriage. All that is needed is to demonstrate that there is an irretrievable breakdown of the marriage through a separation of at least 12 months with no prospect of reconciliation. All time and energy are instead spent on looking towards moving towards the future. Agreements are negotiated and made about the fair division of property. Adequate care arrangements are put in place to make sure children are protected from harm and enjoy meaningful relationships with their parents. As a result, it is common for many people to refer to property division and parenting disputes as a “divorce”. However, divorce only actually means the official ending of a marriage. Putting it that way makes divorce seem quite straightforward, but there are several aspects and issues to consider.

An Australian marriage is defined as being union of 2 people to the exclusion of all others, voluntarily entered into for life. The word people means adults at the time of the wedding. The word people also now includes couples in same sex relationships.

In rare circumstances, it is possible to have a marriage annulled if it does not meet the essential criteria.

If you have been married for less than 2 years, you must attempt marriage counselling before being able to file an Application for Divorce.

Before you can divorce, you must prove that a marriage exists. This is usually done by simply presenting a Marriage Certificate. But sometimes the Marriage Certificate is in a foreign language, records incorrect information, or does not exist at all.

Before you can divorce, you must prove that you have been separated for at least 12 months. This can sometimes be difficult if you have lived under the same roof while separated. You will need to present extra evidence from yourself and a third party with your Application for Divorce.

If your estranged spouse has filed and served an Application for Divorce, you may not agree with the information in their documents. In those circumstances, you have the option of filing a response. You cannot stop the divorce, but you can dispute the facts upon which the Divorce Order is being made.

After you have divorced, you should make a fresh Will to protect your intentions and the intended beneficiaries of your estate.

Before you remarry, you must obtain a divorce order or you will commit the criminal offence of bigamy.

There is no appeal from a divorce order. As a result, you must prove personal service of an Application for Divorce before a divorce order is granted. Sometimes it is not possible to personally serve an Application for Divorce on your estranged spouse. You may no longer have their contact details or they are trying to evade process servers.

There is a period of one month and one day between the divorce being granted and the divorce order being made. This period is called decree nisi. Its traditional purpose was to give an opportunity to anyone who may be adversely affected by the divorce from being made final. However, its modern purpose is to give divorcing couples a chance to cancel the divorce before it is made final.

Finally, you only have up until 12 months from the date of your divorce order to file an application about the division of your matrimonial property.

De-Facto Relationships Law

Australian society has progressed quite far over the past few decades. Many years ago, separated de-facto couples were treated differently at law from separated married couples. Today, de-facto couples are entitled to the same rights and claims at law as married couples.

De facto couples can seek and obtain Court Orders about parenting, the division of property (assets and liabilities), maintenance, and child support.

Generally speaking it is possible to seek relief from the Family Court if you lived together for at least two years, there is a child of the relationship, at least one third of your relationship was spent living in WA, or significant contributions were made by one partner and the failure to make an order would result in a serious injustice.

It is quite straightforward to prove the existence of a marriage. But de-facto relationships are somewhat more complex. There are specific criteria which needs assessing and balancing to determine whether a relationship is “marriage like” or “a marriage in all but name” including:

 

  • the duration of the relationship;
  • the nature and extent of common residence;
  • whether a sexual relationship exists;
  • the degree of financial dependence or interdependence and arrangements for financial support;
  • the ownership, use and acquisition of their property;
  • the decree of mutual commitment to a shared life;
  • whether the relationship is or was registered under a prescribed law of a State/Territory;
  • the care and support of children; and
  • the reputation and public aspects of the relationship

Sometimes it is necessary to prove that a de-facto relationship exists before the Family Court has jurisdiction to make any orders at all. You should be aware that Western Australia has a higher threshold to prove a de-facto relationship exists than the rest of Australia.

There are other complexities to consider. For example, it is possible to be in multiple de-facto relationships at the same time. Also, you could be married with someone while being in a de-facto relationship with someone else. there are many countries which do not recognise de-facto relationships.

Ultimately, it will depend upon what you need. You may wish to protect your assets before or during a de-facto relationship through a Binding Financial Agreement. You may wish to divide your property after a de-facto relationship has ended by negotiating a Binding Financial Agreement or Form 11 Application for Consent Orders. You may wish to establish care arrangements for your children through a Parenting Plan or Consent Orders. You may wish to prevent any of your property being divided at all because there was no de-facto relationship, or a division would not be just and equitable or “fair”.

There are many possibilities, pitfalls, and potential outcomes. I can advise you about your entitlements based on your particular personal circumstances. I can also advise you about what is an appropriate outcome to resolve your situation. You can then decide if it is worthwhile to seek and obtain a Court Order about your relationship through negotiation, mediation, or litigation at the Family Court of WA.

Whatever path you choose, please be aware that you only have two years from the date of final separation to file an application at the Family Court of WA. If you do not commence proceedings within that timeframe, you will be “out of time” and must first seek permission from the Family Court of WA before being able to obtain an order about the division of property.

Please feel welcome to contact Michael Klimek to discuss any of our services we offer

You may require further detail.

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