For de-facto parties to bring an application for a property settlement, they must prove that they were in a de-facto relationship for a minimum of 2 years.
Section 4AA(2) of the Family Law Act 1975 defines a de-facto relationship. The circumstances which must be taken into account when determining whether a de-facto relationship exists may include consideration of all or some of the following:
(a) the duration of the relationship;
(b) the nature and extent of their common residence;
(c) whether a sexual relationship exists;
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
(e) the ownership, use and acquisition of their property;
(f) the degree of mutual commitment to a shared life;
(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
(h) the care and support of children;
(i) the reputation and public aspects of the relationship.
The recently decided Federal Circuit Court case of Kristoff & Emerson concerned a relationship which commenced in 2003 and ended in 2011. The applicant had met the other party, being the respondent in this case, in her occupation as a sex worker. The sexual relationship moved on from being a commercial arrangement when the respondent no longer paid for her services. The respondent argued the parties merely had a “friendship”.
There were no children of the relationship. The applicant had minimal assets but the respondent had almost $2 million worth of assets. She sought a payment from the respondent representing 25% of the value of his assets by way of a property settlement.
The parties never shared a fiscal relationship or financial interdependence. The parties never held a joint bank account or acquired property together, and the respondent paid for the majority of expenses. The parties however spent considerable time together and a commitment to a shared life.
The applicant also claimed that her career as a sex worker was adversely affected as she lost income because she gave up sex work for a new occupation during her relationship with the respondent.
The court was not convinced that the applicant had ceased her employment as a sex worker due to her relationship with the respondent. Ultimately, it found that it was not just or equitable to proceed with an alteration of property interests between the parties at all, because a de-facto relationship had not existed between them.
At Everingham Solomons we have the expertise and experience to assist you with de-facto relationship matters and any other family law matter because Helping You is Our Business.
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