How to AVOID defacto and how to time a BFA

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MattSAU2XR8

Member
7 June 2019
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0
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Hi guys, new poster.

This isn't a men are better or women are better kind of post. Perhaps a little bit of 'the law is an ass kind of post'. Just curious as to whether its even possible for a person who is not a family court Judge to:

1. Enjoy a friend with benefits, girlfriend, boyfriend, partner, or fiance for as long as they both wanted, without becoming defacto. On the assumption that if they wanted to get married, then they would actually get married.

2. Predict when would be a safe but not apparently paranoid time to ask their variably significant other for a binding financial agreement. I.e. soon enough to prevent major property loss if things didn't work out. Which seems to happen quite often.

Many years ago but still within my lifetime things seemed simpler, although whether fairer could still probably be argued either way:
- A friend with benefits was pretty much that, although probably more benefit than friend, no legal significance unless kids resulted
- A boyfriend or girlfriend meant one person who was a closer than average friend, and whom one had sex with, unless religious views prevented this, in which case it must have been a closer than average friend who was being considered as fiance/husband/wife material
- If BF or GF lived rent free for example at the others house they were considered to be getting a benefit, i.e. free rent, rather than the provider of free rent taking on a lifelong liability
- A husband or wife was exactly that, a lifelong commitment.
- If one or other partner wanted a lifelong commitment and the other didn't there could be a ultimatum
- If they got married, then it lasted either for ever, or till divorce

Much more complicated now because the law, which isn't all that definitive says that a person MAY be in a defacto relationship depending on factors including:
- How long together. 2 years is bandied about a bit.
- If sexual relationship relationship. If not then how would court know they were 'married' as opposed to friends... I've shared houses with heaps of people. And vehicles. And bills.
- If living together, but apparently not completely necessary...?
- Mutual commitment, which clearly does not exist if parties are separating...
- Apparently can be married AND having a defacto relationship with another party. Which makes no sense as there surely can't be mutual commitment to multiple parties, this would be defacto bigamy?
- Financial dependency.
- Shared property
- Public aspects of relationship, reputation, i.e. his or her friends say 'Oh yes, they are definitely a couple'
- Care and support of children, seems quite reasonable if living together for 5 years and have 5 kids to call it a 'marriage'

Certainly I can see some benefits on defacto law. Otherwise (commonly) a man could stall his fiance on marriage, have five kids, accumulate a stack of super but no house, and then leave her with nothing, other than child support.

On the other hand I have met quite a few people who have lived with other persons in some manner of relationship for a relatively short period of time, and lost a relatively large amount of money. Both men and women affected pretty much equally. And often these people were happy to be in the relationships they were in, but did not in any way consider themselves to be married, at least until after the breakup.

So, assuming that two people are either FWB, or GF and BF, or BF and BF, or GF and GF, and are quite content with this situation, and do NOT want to be fiances or married or 'married' or defacto at present, what can they do?
Would it be enough to:
- Both have jobs, or be studying, i.e. doing something other than being dependent
- Both have separate residences, even if they stay over regularly
- Not share bank accounts or bills or vehicles
- Pay cash for any gifts or other considerations so no paper trail
- Not have kids
- Possibly make regular statements on Facebook as to the precise nature of the relationship?
One would hope so, otherwise heaps of high school students who have been in two year relationships would already be defacto... But I fear this is too logical?

My second question concerns when it would be appropriate to ask the other party for a BFA. Assuming that it is not possible to have a FWB, BF, or GF for more than a short time without the court potentially deciding it is a defacto relationship. Clearly one week after meeting might be too soon, but possibly one year could be stretching the bounds of safety?

Thanks for everyone's thoughts. If there's heaps of good info I may do a summary at the end.
 

Scruff

Well-Known Member
25 July 2018
818
126
2,389
NSW
Wow - that was an interesting read. Here's how I see it:

The subtext here appears to be about having your cake and eating it too - which the law doesn't allow. One important thing that you're missing is "emotional attachment" - which applies to a "girlfriend, boyfriend, partner, or fiance", but does not apply to a "friend with benefits". With a genuine FWB, there is no intent to take the relationship further - it's a sexual relationship only.

Therefore:
1. Enjoy a friend with benefits, girlfriend, boyfriend, partner, or fiance for as long as they both wanted, without becoming defacto.
They are different things. A "friend with benefits" doesn't have any emotional attachment whereas a "girlfriend, boyfriend, partner, or fiance" does.
On the assumption that if they wanted to get married, then they would actually get married.
This is emotional attachment and therefore any so called "friend with benefits" is actually a "girlfriend, boyfriend, partner, or fiance".
2. Predict when would be a safe but not apparently paranoid time to ask their variably significant other for a binding financial agreement. I.e. soon enough to prevent major property loss if things didn't work out. Which seems to happen quite often.
Again, "significant other" indicates emotional attachment. Additionally, I'm pretty sure you can't have a BFA with a "friend with benefits" - there has to be a full relationship. A "friend with benefits" is just a "friend", not a "partner".

In regard to de factos:
2 years is bandied about a bit
2 years is the minimum under Family Law.
If living together, but apparently not completely necessary...?
Under normal circumstances, living together would be necessary for a de facto relationship to exist.
Apparently can be married AND having a defacto relationship with another party. Which makes no sense as there surely can't be mutual commitment to multiple parties, this would be defacto bigamy?
It makes perfect sense. If you are married but separated and then move in with a new partner, you have a de facto relationship with the new partner even though you are still married to the ex. In fact I think the law actually states that a de facto relationship can exist even if one or both parties are married to someone else.

In regard to:
So, assuming that two people are either FWB, or GF and BF, or BF and BF, or GF and GF, and are quite content with this situation, and do NOT want to be fiances or married or 'married' or defacto at present, what can they do?
Again, it's two different things. You should never have an FWB living under the same roof. If things get nasty, it's too easy for them to claim de facto and nearly impossible for you to prove otherwise. As for the others, living together creates a de facto relationship in most cases whether that's how you see it or not.

Most importantly, you seem to be misunderstanding what a de fact relationship actually is, because it has nothing to do marriage. Under the law, a de facto relationship is defined by the nature of the relationship and any intent to marry is irrelevant. In other words, the law views a de facto relationship is an "alternative" to marriage, not a "prelude" to marriage.

To sum it all up, the only safe solution in regard to FWB's is don't live together. As soon as two people are under the same roof in a sexual relationship, it becomes very difficult to convince anyone, let alone a court, that there is and has never been any emotional attachment.
 
Last edited:

Rod

Lawyer
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27 May 2014
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I agree with Scruff.

And while the law was simpler years ago, it created a class of relationship that men often abused for the own benefit, hence the changes.

Kids having 2 year relationships are different because they often do not support themselves let alone their 'friend'.
 

sammy01

Well-Known Member
27 September 2015
4,452
647
2,894
We decided against a BFA. WHY? Well the local small town solicitor said he didn't want the work. He said we could pay an expensive barrister and get a really pretty BFA written up. BUT - the validity of the thing can still be challenged. So, for example IF me and the partner were to split without a BFA we could come to an agreement about assets and if we are unable to do that then it is off to court. BUT if we have a BFA, unless the person who most benefits from it is prepared to re-nogotiate once the relationship ends then there is only one option. That is to apply to court to have the thing overturned.

Chance of success? Doesn't matter, the fact is both parties have thrown money at solicitors to get the BFA and are now throwing more money at solicitors to either defend the BFA or to have it overturned... So what say the relationship goes for 10 yrs. Well the BFA is likely to be considered dated and not reflecting the current situation at time of separation.

Solution - LOVE... Oh ain't that beautiful.... And if that fails then court realising that the legal system is actually pretty fair. Heaps more fair than one partner with lots of money exerting coercion over the partner that has less funds.
 

Steve W

Active Member
14 February 2020
13
0
31
Hi guys, new poster.

This isn't a men are better or women are better kind of post. Perhaps a little bit of 'the law is an ass kind of post'. Just curious as to whether its even possible for a person who is not a family court Judge to:

1. Enjoy a friend with benefits, girlfriend, boyfriend, partner, or fiance for as long as they both wanted, without becoming defacto. On the assumption that if they wanted to get married, then they would actually get married.

2. Predict when would be a safe but not apparently paranoid time to ask their variably significant other for a binding financial agreement. I.e. soon enough to prevent major property loss if things didn't work out. Which seems to happen quite often.

Many years ago but still within my lifetime things seemed simpler, although whether fairer could still probably be argued either way:
- A friend with benefits was pretty much that, although probably more benefit than friend, no legal significance unless kids resulted
- A boyfriend or girlfriend meant one person who was a closer than average friend, and whom one had sex with, unless religious views prevented this, in which case it must have been a closer than average friend who was being considered as fiance/husband/wife material
- If BF or GF lived rent free for example at the others house they were considered to be getting a benefit, i.e. free rent, rather than the provider of free rent taking on a lifelong liability
- A husband or wife was exactly that, a lifelong commitment.
- If one or other partner wanted a lifelong commitment and the other didn't there could be a ultimatum
- If they got married, then it lasted either for ever, or till divorce

Much more complicated now because the law, which isn't all that definitive says that a person MAY be in a defacto relationship depending on factors including:
- How long together. 2 years is bandied about a bit.
- If sexual relationship relationship. If not then how would court know they were 'married' as opposed to friends... I've shared houses with heaps of people. And vehicles. And bills.
- If living together, but apparently not completely necessary...?
- Mutual commitment, which clearly does not exist if parties are separating...
- Apparently can be married AND having a defacto relationship with another party. Which makes no sense as there surely can't be mutual commitment to multiple parties, this would be defacto bigamy?
- Financial dependency.
- Shared property
- Public aspects of relationship, reputation, i.e. his or her friends say 'Oh yes, they are definitely a couple'
- Care and support of children, seems quite reasonable if living together for 5 years and have 5 kids to call it a 'marriage'

Certainly I can see some benefits on defacto law. Otherwise (commonly) a man could stall his fiance on marriage, have five kids, accumulate a stack of super but no house, and then leave her with nothing, other than child support.

On the other hand I have met quite a few people who have lived with other persons in some manner of relationship for a relatively short period of time, and lost a relatively large amount of money. Both men and women affected pretty much equally. And often these people were happy to be in the relationships they were in, but did not in any way consider themselves to be married, at least until after the breakup.

So, assuming that two people are either FWB, or GF and BF, or BF and BF, or GF and GF, and are quite content with this situation, and do NOT want to be fiances or married or 'married' or defacto at present, what can they do?
Would it be enough to:
- Both have jobs, or be studying, i.e. doing something other than being dependent
- Both have separate residences, even if they stay over regularly
- Not share bank accounts or bills or vehicles
- Pay cash for any gifts or other considerations so no paper trail
- Not have kids
- Possibly make regular statements on Facebook as to the precise nature of the relationship?
One would hope so, otherwise heaps of high school students who have been in two year relationships would already be defacto... But I fear this is too logical?

My second question concerns when it would be appropriate to ask the other party for a BFA. Assuming that it is not possible to have a FWB, BF, or GF for more than a short time without the court potentially deciding it is a defacto relationship. Clearly one week after meeting might be too soon, but possibly one year could be stretching the bounds of safety?

Thanks for everyone's thoughts. If there's heaps of good info I may do a summary at the end.

Your post really sums up the insanity of Family Law in regard to de factos. The whole point of Marriage is for both parties to consent to matrimonial interest. It is supposed to be one of the biggest decisions you can ever make in your entire life. However, judges are forcing people into marriages they've never consented to. Calling it "de facto" does not alleviate anything because the entirety of Marriage law is applied, law which was designed around 2 people having spent years reflecting on each other, building trust, and finally deciding on a lifelong commitment under sworn oaths with a ceremony. This is not the precedent under which Australians form relationships. Signing a rental lease with your gal pal is being treated as if were a Marriage ceremony. The law as it stands is a blight on Australian life. The cumulative suffering and displaced well-being this has caused would be tremendous.
 

Step2Three

Well-Known Member
21 December 2018
39
12
154
I got very similar advice as Sammy when I first moved in with (now) husband, though it was coming from a city Family Law Firm.
Lawyers take was, if the relationship were to fail early (say <5 years after moving in) with no children resulting you can reasonably expect to walk away with what you came into the relationship with (on the basis of the FLA), and split anything that was generated together. Her suggestion was compile a list of what each of you had started out with, and both sign it, as evidence should it be needed later down the track if it became contested(said she'd done the same with her husband). So in that circumstance, BFA would not be necessary.
Alternatively, if the relationship is very long, or bore children, circumstances would be understood to have changed significantly since the BFA was originally agreed, so it could be successfully challenged. So having a BFA is of little consequence.
While there are no doubt exceptions for personal circumstances, my impression is that at best a BFA may be a deterrent to former partners going after additional settlement (if they think it is more binding than it is), but if they are educated enough (or ask someone who is) then it wouldn't be a barrier.
 

Tim W

Lawyer
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Atticus

Well-Known Member
6 February 2019
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judges are forcing people into marriages they've never consented to ........ Signing a rental lease with your gal pal is being treated as if were a Marriage ceremony. The law as it stands is a blight on Australian life. The cumulative suffering and displaced well-being this has caused would be tremendous.
The whole premise of your argument is flawed.... First of all the courts just apply the legislation as passed by parliament, nor do they declare a couple to be de facto unless they meet certain criteria.

A relationship of less than 2 years *generally* doesn't imply a de facto for the purposes of family law property division..... & as explained by others, *generally* a relationship (married or de facto) of 5 years or less will see initial contributions retained by each party...... These laws are not about fleecing anybody at the expense of another. Just the opposite if anything.

There's a saying that life is what happens when you're busy making other plans..... Whether by design or circumstance If a relationship morphs into a long term domestic (as well as by necessity) a financial one by way of acquiring assets (a normal function of life either partnered, unpartnered or married) then there is a need to provide some legal remedy that is just & equitable (in the unique circumstance of each case) for a party to such a relationship, who otherwise may be thoroughly disadvantaged should that relationship end.

De facto property division is not a new thing..... Before de facto property causes were taken under the umbrella of the commonwealth (family law act) each state had its own property laws under which it was still possible for a de facto to pursue property division.
 

Steve W

Active Member
14 February 2020
13
0
31
The whole premise of your argument is flawed.... First of all the courts just apply the legislation as passed by parliament, they don't force anybody to do anything, nor declare a couple to be de facto unless they meet certain criteria.

A relationship of less than 2 years *generally* doesn't imply a de facto for the purposes of family law property division..... & as explained by others, *generally* a relationship (married or de facto) of 5 years or less will see initial contributions retained by each party...... These laws are not about fleecing anybody at the expense of another. Just the opposite if anything.

There's a saying that life is what happens when you're busy making other plans..... Whether by design or circumstance If a relationship morphs into a long term domestic (as well as by necessity) a financial one by way of acquiring assets (a normal function of life either partnered, unpartnered or married) then there is a need to provide some legal remedy that is just & equitable (in the unique circumstance of each case) for a party to such a relationship, who otherwise may be thoroughly disadvantaged should that relationship end.

De facto property division is not a new thing..... Before de facto property causes were taken under the umbrella of the commonwealth (family law act) each state had its own property laws under which it was still possible for a de facto to pursue property division.

I am criticising the legislation itself which gives the courts a mandate to apply matrimonial interests to individuals who did not consent to one. Marriage contracts that never existed are routinely applied post-hoc in order to confiscate and redistribute property as if vows had been exchanged.

As you disclaim at every point, "generally" because the exceptions have increasingly become the rule. The statute of limitations is routinely overruled. "Hardship" is arbitrarily defined to suit the judge's ends. "Genuine domestic basis" can mean anything. Let's not fool ourselves that "just and equitable" isn't utterly ambiguous, that such a phrase is reliable enough to conduct your life around. Even if an unfair order is unlikely, there is still no certainty about the legal nature of a relationship. Therefore Australians cannot conduct their affairs to the extent they should be able to.

I respect that you disagree, but the sheer inconsistency of rulings indicate de facto recognition has set a dangerous precedent. While de factos were legally recognised before 1975 at the state level, Australia is one of few nations where de factos are treated as 100% matrimonial, where the fullest extent of a Marriage contract is applied. This is wrong because the laws surrounding Marriage were conceived with the assumption that the parties made an unequivocal, consensual, life-changing decision to exchange vows.
 
Last edited:

Rod

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The difficulty with your argument is that the law is setup to protect the weak (traditionally been the woman), young, gullible and naive.

People come into relationships with all sorts of property and then establish a role that suits them, or is at least something they will tolerate.

There are public policy considerations
  • as to whether homemaking should have the same economic worth as the partner with a job; and
  • is it the role of the State to support someone leaving a relationship when there are significant assets that have been acquired during that relationship?
A well-written BFA will overcome your problems, and it is mental laziness and penny-pinching by some that contribute to their own issues when relationships end.

I could write a paper on your premise however I have other things to do and I suspect others already have. Maybe read some journal articles around how our family law arrived at it present state. There have also been a number of reviews over the years.