One of the first things a family lawyer will ask a new client is when their relationship started and ended. To some people thisis not a difficult question. They may not havelived together until their date of marriageand that after a period of unhappiness, they moved out on a particular day. The reasonwhy it is important is because the legislation isbuilt around concepts such as the duration ofthe marriage or relationship and contributionsmade including indirect contributions, nonfinancialcontributions, and contributions as homemaker.
The duration of a defacto or same sexrelationship is also important for jurisdictionalpurposes. Unless you have had a childtogether or substantial contributions havebeen made, for defacto and same sex couplesyou need to have been in the relationshipfor two years. Similarly, you only have 2 yearsfrom the date you separate to make anapplication for financial issues to be resolved.
Your date of separation is important if thelaw is about to change. In the family law area,there have been at least 3 occasions whenthe date of separation was crucial. The firstof these was in 1975 when the Family LawAct was introduced and the entire familylaw system was overturned. In 1989, thechild support system was overhauled butonly applied to people whose marriages hadbroken down after October 1989 (or who hada child born after that date). In more recent times, in 2009 the federal system took overproperty settlement for same sex and defactocouples but only applied to those couples whose relationship had ended after 1 March 2009.
The date of separation has always beenimportant for obtaining a divorce since thelegal requirement is separation for 12 months.
To separate, you need to form theintention, communicate that intention andthen act upon it. Couples often don’t livetogether although they regard themselvesas still in an intact relationship. For example,one person is posted overseas but the restof the family remains behind either becausethe posting is unsuitable or children need tofinish schooling. Similarly, one party may bein a nursing home and not be living with theother person but the relationship has not ended.
Therefore, if you form the view whileliving separately from your spouse that yourrelationship is over you need to communicatethat either verbally or in writing.
You can, however, be separated while stillliving together. This is a concept known as”separation under the one roof”. Your lawyercan assist you in helping work out whetheryou have been separated under the one roof or not.
Just as knowing when a relationship endscan be difficult; knowing when it starts can beeven trickier. If parties gave up their individual leases on premises they were renting and tookout a joint lease on a property then again thatis simple. However, what often occurs is thatparties spend occasional nights at each other’shomes which, over time, increases until it maybe full time. There may be periods where fewernights are spent or where the relationship issuffering some problems and they spend few nights together.
Knowing when you are in a relationshipis not just important in the family law arena.Government benefits and allowances aredifferent depending on whether you are ina relationship or not and there are penaltiesfor failing to disclose at the appropriate time.Similarly, members of the defence forces andpeople on overseas postings are entitled tocertain allowances depending on whether ornot they are in a relationship. Superannuationbenefits upon death may be payable to aperson in depending on the duration of therelationship with the deceased person at time of death.
Next month we will discuss a question thatis related to this topic. Forget about duration ofrelationship-what happens if one party says:”We were never in a relationship”?
For Family Law Advice contact
Farrar Gesini Dunn
Level 5, Colonial , Mutual Building
17-21 University Avenue, Canberra City ACT
P (02) 6257 6477 | F (02) 6257 4382
E [email protected] | www.fgd.com.au