In order to find out whether your spouse may have a claim on your assets if you separate, you would first need to determine whether you are in a de facto relationship at all.
A de facto relationship is defined in the Family Law Act as a relationship whereby the couple are not legally married to each other and are living together on a genuine domestic basis.
When working out whether a de facto relationship exists, the Court looks at a range of circumstances including:
- the duration of the relationship;
- the nature and extent that you share a common residence;
- whether there is a sexual relationship;
- the degree of financial dependence;
- whether you have joint assets/property;
- whether you have any children together;
- how you “hold yourselves out” as a couple to the public.
None of these factors alone are determinative and it is important to consider your circumstances as a whole.
Once a de facto relationship is found to exist, then the next question that needs to be asked is whether it would be “just and equitable” for a Court to make orders to divide/alter your asset and property interests. Answering this question also involves delving into the nature of your relationship, but will also require a complex analysis of previous case law on the issue and how the law applies (or doesn’t apply) to your situation.
These questions are often not straightforward, and it’s important to seek expert legal advice as to whether your spouse may have a claim against your assets.
Our expert family lawyers in Ringwood and the Eastern suburbs have had extensive experience dealing with cases involving de facto relationships. For more information and an obligation free chat, please contact one of our experienced family lawyers on jlok@oikosfamilylaw.com.au or 0421 397 316.
