WA De Facto Relationship Queries

[Mark Ramsden]

My girlfriend L and I have been dating for 4 and half years (de facto). L moved in with me in October of 2013, 10 months ago, we both own our own homes, cars and have no personal debit, L has a son from her previous marriage A who is 20. A know lives in L home. Both L and I have wills leaving all our separate assets/money we had before we met to our parents, immediate family.

My Questions :
1) How long do L and I have to be together/live together before we are entitled to some/all of each others assets we had before we met?

2) We are not planning to marry, I did look into cohabitation/binding financial agreements, cost from $1,000 upwards, a bit of a shock. With our situation being pretty simple I thought it would cost less. Are these the only agreements available for what we need?

3) If I/L or both of us were to die do the wills we have override any legal rights we both have for each others assets, would a will override a cohabitation/binding financial agreement?

4) In terms of estate planning, do we need a new joint will leaving all our assets to our families?

5) What will happen if we just leave things as they are, just having our separate wills? If we broke up what would be ramifications to what each party is entitled if it ended up in court?

thanks

 

[Sophea]

Dear Mark,

Im not sure what state you are in, the provisions may vary depending on where you live. My response is based loosely around the laws in NSW.

1) How long do L and I have to be together/live together before we are entitled to some/all of each others assets we had before we met ?

I assume you are referring to the situation where one of you dies, as opposed to separation. In that case, you are not automatically entitled to half of the other's estate per se. Your wills will override any natural laws of intestacy that would normally divide up your estate if you did not have a will. However someone who is recognised as a de facto partner would be entitled to contest your will, if they were not provided for in it.

Section 105 of the Succession Act (NSW) defines a domestic partnership as a relationship between the intestate and another person that is a registered relationship or interstate registered relationship within the meaning of the Relationships Register Act 2010 or a de facto relationship that:

• has been in existence for a continuous period of at least 2 years, or
• has resulted in the birth of a child.

However there are a range of additional factors that the court considers in determining whether a de facto relationship such as joint assets, joint accounts, living arrangements, sexual history etc.

2) We are not planning to marry, I did look into cohabitation/binding financial agreements, cost from $1,000 upwards, a bit of a shock. With our situation being pretty simple I thought it would cost less. Are these the only agreements available for what we need ?

Again, is this for the case of separation or death or both?

3) If I/L or both of us were to die do the wills we have override any legal rights we both have for each others assets, would a will override a cohabitation/binding financial agreement ?

Your wills should be in harmony with any cohabitation or binding financial agreement that you have, otherwise you are costing your estate and your relatives much money and stress in executing the wills. If you were to die your wills would have effect over any natural rights to a share of your estate (ie. the laws of intestacy), however as stated previously, a de facto who is not provided for in the will, could lodge a family provision application to seek some share of your assets.

4) Do we need a new joint will leaving all our assets to our families ?
Not necessarily, but I would make sure that any cohabitation agreements and wills are in harmony with each other and closely reflect your wishes. Sit down with an expert and discuss exactly what your wishes are then allow them to put documents in place to reflect them. Its an investment.

5) What will happen if we just leave things as they are, just having our separate wills, if we broke up what would be ramifications to what each party is entitled if it ended up in court ?

Wills will have no bearing on a separation settlement in the family court. If you are considered de facto partners and you were to separate the court may order some division of assets, which may then affect your will - for example if you gift a property to your son or daughter but now your de facto is now part owner of that property, you could only gift your share. If you broke up and then one party died, it is unlikely they would be able to make a family provision application on your will, as the onus would be on them to prove the existence of a de facto relationship. Unlike marriage, rights end with the relationship not the marriage.

 

[Mark Ramsden]

Thanks for your reply, very helpful ...

Dear Mark,

Im not sure what state you are in, the provisions may vary depending on where you live. My response is based loosely around the laws in NSW.

1) How long do L and I have to be together/live together before we are entitled to some/all of each others assets we had before we met ?

I assume you are referring to the situation where one of you dies, as opposed to separation. In that case, you are not automatically entitled to half of the other's estate per se. Your wills will override any natural laws of intestacy that would normally divide up your estate if you did not have a will. However someone who is recognised as a de facto partner would be entitled to contest your will, if they were not provided for in it.

Section 105 of the Succession Act (NSW) defines a domestic partnership as a relationship between the intestate and another person that is a registered relationship or interstate registered relationship within the meaning of the Relationships Register Act 2010 or a de facto relationship that:

• has been in existence for a continuous period of at least 2 years, or
• has resulted in the birth of a child.

However there are a range of additional factors that the court considers in determining whether a de facto relationship such as joint assets, joint accounts, living arrangements, sexual history etc.

2) We are not planning to marry, I did look into cohabitation/binding financial agreements, cost from $1,000 upwards, a bit of a shock. With our situation being pretty simple I thought it would cost less. Are these the only agreements available for what we need ?

Again, is this for the case of separation or death or both?

3) If I/L or both of us were to die do the wills we have override any legal rights we both have for each others assets, would a will override a cohabitation/binding financial agreement ?

Your wills should be in harmony with any cohabitation or binding financial agreement that you have, otherwise you are costing your estate and your relatives much money and stress in executing the wills. If you were to die your wills would have effect over any natural rights to a share of your estate (ie. the laws of intestacy), however as stated previously, a de facto who is not provided for in the will, could lodge a family provision application to seek some share of your assets.

4) Do we need a new joint will leaving all our assets to our families ?
Not necessarily, but I would make sure that any cohabitation agreements and wills are in harmony with each other and closely reflect your wishes. Sit down with an expert and discuss exactly what your wishes are then allow them to put documents in place to reflect them. Its an investment.

5) What will happen if we just leave things as they are, just having our separate wills, if we broke up what would be ramifications to what each party is entitled if it ended up in court ?

Wills will have no bearing on a separation settlement in the family court. If you are considered de facto partners and you were to separate the court may order some division of assets, which may then affect your will - for example if you gift a property to your son or daughter but now your de facto is now part owner of that property, you could only gift your share. If you broke up and then one party died, it is unlikely they would be able to make a family provision application on your will, as the onus would be on them to prove the existence of a de facto relationship. Unlike marriage, rights end with the relationship not the marriage.

 

[Sophea]

no worries!