VIC Not sure what to do.

[Steve W]

I was with my ex-girlfriend for about 8 months. We have a child and share approximately 50% care. I've worked very hard over the last 5 years and tried to save up for a future whilst paying child support.

Recently I learned about the Family Law Act. It seems ambiguous and poorly drafted. I've no basis on which to decide whether I was in a "de facto" or not. Engaging in a property settlement with her will expose years of hard-earned savings to be confiscated. There is no basis on which I can decide how to conduct my affairs, and it seems a property settlement could pop up at any arbitrary time.

It can be psychological torture getting up at work at 5am, doing a 9 hour shift not knowing if my earnings are even mine. I don't want to sound dramatic but I'm constantly anxious and it's wrecking havoc on my quality of life. I do feel like quitting and giving up. How are Australians supposed to be ambitious when upwards of 75% of their savings can be arbitrarily confiscated at the whims of a judge at any time?

 

[sammy01]

nope. you're wrong... The good news. A defacto relationship means living together for 2 yrs (except when there is a child). Calm down. Keep reading.
De facto Relationships - Federal Circuit Court of Australia

But - when it comes to asset division the courts look at two things that you're gonna like.
1. The duration of the relationship. I'm guessing you guys probably didn't even live together all that long if at all? So (sorry for being blunt) the child was more the product of a one night stand than a long term relationship. So you should be feeling a bit better already.
"When assessing property or custodial claims in cases of a breakdown of a relationship, it is recognised that significant contributions were being made by one party and the failure to issue an order would result in a serious injustice"
from the link above...
AND 2
The best news... 2 years.
"You must apply for de facto financial orders within two years of the breakdown of your relationship. After this time you need the Court's permission to apply. "
from the link above.

Ok so technically she can apply after 2 yrs. But would need to establish a good reason. 'Sorry - been a bit busy lately' isn't a good reason. So lets assume she did manage to get past the 2 year deadline.
She would have to be able to establish the $$ you've saved in the past 5 years has anything to do with her. It doesn't.
And then she would have to establish that she made substantial finacial contributions and it would be a 'serious injustice' if she didn't get that $$ back. Its not...

Final thought - If after 2 years she made an application. Problem (maybe). BUT 5 years. She has no chance of making a claim after 5 yrs. Mate if she went and saw a solicitor she would be told that she has stuff all chance of getting a cent out of you and she would have to spend $$$ thousands to try. The first step would be getting an exemption for the 2 yr deadline and that would cost her money but not you... She has way too many hurdles infront of her to make it worth her while.

So sleep well, stress less, work hard and you owe me a beer.

 

[Atticus]

There is no basis on which I can decide how to conduct my affairs, and it seems a property settlement could pop up at any arbitrary time.

What sammy said ^^^^^ after 5 years you're looking very good..... Only together 8 mths, so no significant accumulation of assets anyway...... 50% care of child. Great outcome

It can be psychological torture getting up at work at 5am, doing a 9 hour shift not knowing if my earnings are even mine

Even IF she were to take you to court, there's this thing called POST separation earnings,ie, money you have earned/saved from your OWN labor after separation.... that does NOT get included in the property pool for division..

Relatively speaking, you are in a very good position..... Certainly no need to stress over a property settlement popping up

 

[Tim W]

Clarify one thing for me... you were together for 8 months, and yet you have a child together?
You are 100% certain of parentage, yes?

 

[Steve W]

Clarify one thing for me... you were together for 8 months, and yet you have a child together?
You are 100% certain of parentage, yes?

Sorry I should have been clearer. We were boyfriend/girlfriend for approximately 4 months before moving together as a result of the unplanned pregnancy. I thought it was the right thing for me to do by her but the relationship was doomed the entire time. Her care was slightly more (she had our daughter an extra day every couple of weeks), but has since been adjusted to 50/50.

 

[sammy01]

Yeah, advice doesn't change... You're off the hook as far as her hounding you for anything other than child support.

 

[Steve W]

nope. you're wrong... The good news. A defacto relationship means living together for 2 yrs (except when there is a child). Calm down. Keep reading.
De facto Relationships - Federal Circuit Court of Australia

But - when it comes to asset division the courts look at two things that you're gonna like.
1. The duration of the relationship. I'm guessing you guys probably didn't even live together all that long if at all? So (sorry for being blunt) the child was more the product of a one night stand than a long term relationship. So you should be feeling a bit better already.
"When assessing property or custodial claims in cases of a breakdown of a relationship, it is recognised that significant contributions were being made by one party and the failure to issue an order would result in a serious injustice"
from the link above...
AND 2
The best news... 2 years.
"You must apply for de facto financial orders within two years of the breakdown of your relationship. After this time you need the Court's permission to apply. "
from the link above.

Ok so technically she can apply after 2 yrs. But would need to establish a good reason. 'Sorry - been a bit busy lately' isn't a good reason. So lets assume she did manage to get past the 2 year deadline.
She would have to be able to establish the $$ you've saved in the past 5 years has anything to do with her. It doesn't.
And then she would have to establish that she made substantial finacial contributions and it would be a 'serious injustice' if she didn't get that $$ back. Its not...

Final thought - If after 2 years she made an application. Problem (maybe). BUT 5 years. She has no chance of making a claim after 5 yrs. Mate if she went and saw a solicitor she would be told that she has stuff all chance of getting a cent out of you and she would have to spend $$$ thousands to try. The first step would be getting an exemption for the 2 yr deadline and that would cost her money but not you... She has way too many hurdles infront of her to make it worth her while.

So sleep well, stress less, work hard and you owe me a beer.

Thank you, I really appreciate your response. Lawyers blogs seems to be filled with extreme cases to scare you and solicit business. The ambiguity and discretion given to judges is so vast. It's as if a judge could justify adjustments of anything between 0% and 100% by liberal interpretations of vague terms. I'm somewhat relieved and will try to continue on, but it does seem very cruel for Australians to be subject to the Family Law Act as it stands. Much of the uncertainty could be easily avoided if loaded terms like "hardship" were properly defined and "indirect contributions" properly valued. Surely those times she washed the dishes was not worth $3500 per hour.

 

[sammy01]

and with 50/50 care she's running out of angles with which to attack. If she had 100% care and made an application 5 years ago... So sleep well, stress less

 

[Steve W]

and with 50/50 care she's running out of angles with which to attack. If she had 100% care and made an application 5 years ago... So sleep well, stress less

Thanks for that. There are periods of time where she's had her an extra day (57/43) but it has been 50/50 for some time. I was worried about a designation of 'primary carer' which would give a judge means to make large adjustments in her favour. Perhaps you disagree, but it seems extremely unfair for a magistrate to force people into Marriage contracts against their will. If people knew this, I think Australians would conduct their romantic lives very differently.