Dating or de facto?

While being married under the law is clear, how do you know if you are in a de facto relationship? Sometimes that is not a straightforward question.

There are numerous factors the law considers when answering ‘what is a de facto relationship’? These include:

  • the duration of your relationship
  • the nature and extent of a common residence
  • the ownership, acquisition and use of property
  • whether there is a sexual relationship
  • the extent of financial support
  • the care of any children
  • the public aspects of the relationship
  • the degree of mutual commitment to a shared life.

In some cases it is are easy to determine whether two persons are in a de facto relationship, however sometimes it is necessary to ask the Court to determine that question first before a case can proceed further. The law also recognises that a person might be in two relationships at the same time.

Blanchfield Nicholls has long experience in advising on, and conducting cases, where the existence of a de facto relationship is an issue.

Do I need a pre-nup?

A Financial Agreement (also known as pre-nuptial agreement or ‘pre-nup’) sets out the financial arrangements that will take effect if you and your partner separate.

You can make a Financial Agreement before you marry, or enter into a de facto relationship, during the marriage or de facto relationship, or after your relationship has ended.

Financial Agreements can be especially beneficial for couples entering their second or third relationship, where both have a more complex set of affairs, greater assets, and perhaps children from previous relationships.

Financial Agreements can also suit younger couples entering their first relationship or marriage.

If you are considering a ‘pre-nup’ it is important to allow plenty of time to discuss and negotiate the terms of your Financial Agreement, and to take legal advice, before the marriage, or before moving in together. Conversations about Financial Agreements can sometimes be difficult, and it is always best if both parties are fully informed and engaged in the process.

Blanchfield Nicholls Principal, Cathie Blanchfield, is an experienced negotiator and drafter of Financial Agreements including ‘pre-nups’ and is available to discuss your family’s situation.

Marriage

Since the passing of the Marriage Act in late 2017, Australian law now recognises that marriage is ‘the union of 2 people to the exclusion of all others, voluntarily entered into for life'.

While parties must voluntarily choose to become married, many couples are not aware of other conditions that must be met before legally entering into a marriage.

These include both parties:

  • not being currently married to anyone else
  • being at least 18 years of age
  • giving written notice of their intention to marry to their authorised celebrant.

While getting married is an exciting time in your life, it is important to make sure you meet these conditions.

If you, or your partner, have any legal concerns regarding marriage, the Blanchfield Nicholls team can advise you on the steps you need to take to ensure that you can legally enter into a marriage.

Same-sex relationships

Since late 2017, Australian couples in same-sex relationships can marry and marriages that have been celebrated earlier in overseas jurisdictions are now legally recognised in Australia. Likewise, divorce applications are now also dealt with in the same way as for any married couple.

Financial settlements for couples in same-sex marriages are dealt with under the Family Law Act on the same principles as for other couples.

Since 2009 in Australia financial disputes involving same sex de facto relationships have been decided under the Family Law Act in the same way as heterosexual de facto relationships and are also essentially the same as for married couples.

Disputes involving children of same-sex couples have been, and will continue to be determined, under the Family Law Act.

Blanchfield Nicholls also assists heterosexual and same-sex couples with the legal aspects of the adoption process where rights and responsibilities of parenting are transferred from the child's birth parents to adoptive parents. Or assist with private adoptions where clients want to formalise relationships with step children or other children related to them.

Cross border and international family law

In Australia it is very common for one or both partners in a marriage or de facto relationship to come from another country.

If an international relationship breaks down there are often special issues, including:

  • need to locate and value overseas assets
  • division of superannuation and overseas pension funds
  • relocation or return of children.

In some international family law cases there may be questions as to where the case should be heard (in Australia or overseas), which is a question of determining the most appropriate jurisdiction.

Blanchfield Nicholls has extensive experience in dealing with cases involving international family and relationship law issues and can advise, guide and solve your family’s matter.

Blanchfield Nicholls Principal, Nigel Nicholls, is a Fellow of the International Academy of Family Lawyers and is well connected to international lawyers, no matter what jurisdiction is appropriate for your international family law matter.

Blanchfield Nicholls Director, Tijana Petkovic, also has a special interest in international family law matters, and has an extensive client base overseas, and connections with well respected international family lawyers in other jurisdictions.

 

Get in touch for a confidential discussion about your family’s situation.