Why the law has changed.

According to surveys and census taken recently the number of persons who are in defacto relationships are on a steady increase.

Although most of the other States have recognised de facto relationship rights for years, Western Australia law gave very limited rights to parties in de facto relationships. Issues regarding children could be argued in the Family Court. However, if a de facto relationship breaks down, or one of the partners passes away, there was no formal process for resolving disputes over property and maintenance.

The only avenue for any de facto couples if they wish to argue about property rights was to go the Supreme Court. Every one knows that to go to the Supreme Court means big bucks.

Thankfully for some, December 1, 2002 has seen a radical change in the law. Persons in de facto relationships can now apply to the family Court for resolution of their family problems.

It is better to apply to the Family Court as it is much less expensive and is completely confidential. It also provides access to alternative dispute resolution processes.

The law now:

The new laws only apply to de facto couples whose relationship ends after December 1, 2002.

As a result of the new laws, if you can show that you have been in a de facto relationship for at least 2 years, you can:

1. Apply to the Family Court for property and maintenance orders.
2. Contributions made towards the accumulation of assets will be taken into account compared to the previous law where for eg. if your name was not in a property, you were unable to claim an interest in the property.
3. Parties can be ordered to go for mediation and counselling.

To fall within the new law, the 1st point is to show that you have been in a de facto relationship.

In making that assessment, the courts will consider the following matters:

• Whether the parties had been together for more than two years
• Whether the parties lived in the same residence
• The degree of financial dependence, or the financial arrangements, between the parties.
• The ownership, use and purchase of the parties’ property.
• Whether there is, or has been, a sexual relationship between the parties.
• The degree of commitment by the parties to a shared life.
• Whether the parties care for and support children.
• How the parties’ relationship is perceived by others.
• The age of the parties. Generally, the parties should be at least 18 years of age.
• Whether one or both of the parties are resident usually in Western Australia. The requirement is that both parties must have lived in Western Australia for at least 1/3 of the period of their relationship.

It does not matter whether:

• The people are of different sexes or of the same sex.
• Either of the people are legally married to someone else or in another de facto relationship.

In the event that you are able to prove the existence of a de facto relationship that falls within the Act, the Family Court can make the following types of orders to resolve property disputes and maintenance issues.

Maintenance
One of the most important rights that have been granted to de facto spouses is the right to claim maintenance.

If a former partner is unable to support himself or herself adequately, for example, if the applicant has the care of a very young child or a young disabled child, then an application may be made for maintenance.

Matters the Family Court will consider include:

• income, property and financial resources of each partner;
• physical and mental capacity of each partner for suitable employment;
• financial needs of each partner;
• responsibilities of each partner to support someone else; and
• terms of any property adjustment order.

Property issues the Family Court can consider.

The court may only make a property order in three situations:

• Where the parties have been in a de facto relationship for at least 2 years.
• Where there is a child of the partners of the de facto relationship who is less than 18 years of age and a serious injustice would result to a partner; or
• Where the applicant made substantial contributions to property and a serious injustice would otherwise result.

The matters that the Family Court will have to consider before making any orders to adjust property rights include:

• nature and length of the relationship;
• direct and non-direct contributions made by each partner to the welfare of the other partner or a child of the partners;
• age and health of each partner;
• direct and non-direct contributions made by each partner;
• income, property and financial resources of each partner; and
• earning capacity and financial needs of each partner.

How about my rights if my partner has passed away.
Another big impact of the new law is the right of a partner whose de facto spouse has passed away. This new law will allow de facto partners to make claims against the estate of their deceased partners.

So what do I do if I am in a de facto relationship.
The legislation provides an opportunity for de facto couples to make agreements that will have the effect of reducing the impact of the new laws. They can do so by signing agreements that are similar to pre-nuptial agreements.

If a de facto couple has entered into a recognised financial agreement, then the agreement will be enforceable by the court. The problem is how do you broach the subject of signing such an agreement without impacting the relationship in a negative way.

In certain circumstances, even though there is an agreement that attempts to nullify the effects of the new laws, the court can still vary such an agreement if:

• there is serious injustice or,
• where there has been a material change in circumstances
• or if it is impracticable for the agreement to be carried out.

If you have any questions regarding the new laws, you should consult a lawyer to see how your new property rights have improved or how your property rights have been eroded (depending on which side of the coin you are at).

On The Light Side...

One day, a teacher, a garbage collector, and a lawyer all died and went to heaven.

St. Peter was there, having a bad day because heaven was getting crowded. When they got to the gate, St. Peter informed them that there would be a test to get into Heaven: They each had to answer a single question.

To the teacher, he said, "What was the name of the ship that crashed into an iceberg and sunk with all its passengers?"

The teacher thought for a second, and then replied: "That would have been the Titanic, right?" St. Peter let him through the gate.

Next, St. Peter turned to the garbage man, and figuring that heaven didn’t really need all the stink that this guy would bring in, decided to make the question a little harder. "How many people died on the ship?"

The garbage man guessed 1228, to which St. Peter said, "That happens to be right. Go ahead."

St. Peter then turned to the lawyer. "What were their names?"