Romantic dinner, walk along the beach …
… and a trip to the lawyers to talk about prenuptial agreements.
That part doesn’t really seem to belong does it?
That is probably very true for a couple who are planning either marriage or a de facto relationship for the first time. However, when one or both of the parties have been in a failed relationship before, they may need less convincing.
A BFA, or Binding Financial Agreement, can be entered into at any time, that is, before, during, or following the breakdown of a relationship. When arranged prior to marriage, it is colloquially known as a prenuptial agreement, or prenup. Many people think that arranging such an agreement at the start of a relationship is akin to a presumption of failure. Not so.
We don’t arrange car insurance with the presumption that we will write our car off, or have house insurance, presuming that our house will burn down. By pre-arranging such agreements, we are simply being proactive, and indeed, quite positive. In fact, the ability to calmly work together to put things in place just in case, is a sign of compatible strength, not impending relationship weakness, and can also provide a sense of confidence in moving forward.
Times and timeframes
In the case of a de facto relationship, financial orders must be requested within two years of a breakdown of the relationship, beyond that, Court approval must be obtained to make such a claim.
In making the claim, it must be shown that the relationship lasted for two years, unless there is a child or children from the relationship, in which case the two-year requirement is waived.
While the two-year specification is quite definitive, when the relationship legally started may not be so clear. Two years from when?
In deciding the status of a de facto relationship, several factors are considered:
- Timeframe involved
- Living arrangements
- Was there a sexual relationship?
- Was the relationship registered under state or territory law?
- Arrangement of finances
- Joint ownership of property
- Were children involved?
- How did the couple present socially?
The beginning of a marriage is far clearer, with a formal ceremony and the signing of legal documents. In the case of marriage, a claim for property settlement must be made within one year of divorce being finalised.
Further, a married couple must have been separated for one year before divorce proceedings can be initiated. This raises an interesting possibility—separated, but living under the same roof. This may be for many reasons: financial, home office, care of elderly parent, care of children, and so on. The court will look at many factors to determine the voracity of the separation.
Worthy of note is that a married couple may separate amicably, and do nothing about financial settlement for several years. Eventually, they divorce and (within one year) make claim for financial settlement. Often misunderstood is that it is the financial status at the later time of claim that is apportioned, not that which applied at the time of separation.
Let cool heads prevail
As can be seen from this brief overview of some family law considerations for relationship breakdown, there are many and varied issues. Whether a separation is amicable or not, one thing is certain—it is far better to obtain sound family law advice earlier, not later.
Family Law – let us simplify it for you. It will be easier with sound legal advice from the experts. Owen Hodge Lawyers. We are here to help.