Many clients falsely believe that if they have been divorced once, that they will be wiser and know how to avoid the pitfalls the second time around. The reality is that love may not be enough to save their assets from the potential ravages of a second relationship break down.
Here are some of the common mistakes people make, thinking they can avoid the legal pitfalls when their second de facto relationship or marriage ends:
1. “This time around, I will keep separate bank accounts and that way, we won’t merge assets so my assets will be safe.”
Wrong: a de facto relationship or marriage need not require you to mingle or merge assets for there to be a potential claim by the other party against what is in your bank accounts or indeed what you own. The entire pool of assets will be considered as will relevant factors such as the length of your relationship, your competing direct and indirect, financial and non-financial contributions as well as your respective future needs. The discretion applied by the court is broad when reapportioning the legal and equitable interests of a couple on their separation. The Court also has to consider whether it will make any adjustment at all and if it does, after applying the property and maintenance sections of the Act relevant to the facts, the Court lastly considers whether it has to make a further adjustment to achieve a just and equitable outcome.
2. “This time around, my assets will be safe because I will not remarry, and we will not live in the same house”
Wrong: You need not live in the same house on a full-time basis for someone to potentially make out that there was, notwithstanding the lack of a common address, a de facto relationship. If you are perceived to be a couple, spend time in each other’s homes, seek out each other’s company, perform household and other tasks for each other, are invited to events as a couple, mingle some expenses but not all, have intimate relations, you may nonetheless be considered to be in a de facto relationship. Each case has to be decided on its own facts so you will need to seek legal advice whether or not you are currently living in or have been living in a de facto relationship.
3. “This time around, I will have a Will which makes it clear what is my kids from my first marriage and what my partner stands to inherit.”
Wrong. A Will, no matter how carefully worded, is a document that only comes into effect on the death of the Testator, the person making the Will. It does not matter what the Will says about your intentions about what your partner is due to inherit on your death. If you separate before you die, the Will is not a relevant document other than being evidence of your intentions. It does not dictate what you expect to be “yours” or “theirs” on the breakdown of your relationship.
4. “This time around, I sat my partner to be down, and we talked about what each of us is going to keep if our relationship breaks down. I didn’t do this in my first marriage so this time I should be okay.”
Wrong. Talking about who gets what is only evidence of your intention and is not binding. Even if you draft up a document between you that says who is to get what, that too is only evidence of your intentions, and it does not prevent either of you from invoking the Family Law Act. The only way to endeavour to protect your assets going into a second marriage or second de facto relationship is to enter into a Financial Agreement which is prepared and signed in accordance with the requirements of the Family Law Act and in respect of which both of you obtain independent legal advice prior to signing the Agreement and the lawyers sign a Statement of Legal Advice which forms part of the Agreement.
If you are considering contemplating a relationship later in life and have any concerns about what you are bringing in and what to protect that for yourself or your family, ensure you get legal advice from Caroline Counsel Family Lawyers as no two relationships are the same so the legal advice will be tailored to your specific situation.
The information in this blog does not constitute legal advice and cannot be relied upon by you. If you require advice specific to your situation you must contact Caroline Counsel Family Lawyers. The contents of this blog are relevant as of 13 May 2022. We recommend you obtain specific advice relevant to you and your family’s situation.
Caroline Counsel
Accredited Family Law Specialist
Principal Caroline Counsel Family Lawyers
