How to AVOID defacto and how to time a BFA

[Atticus]

As you disclaim at every point, "generally" because the exceptions have increasingly become the rule

generally because there ARE always exceptions (children being born inside the 2 years for eg).... They are by no means the rule

The statute of limitations is routinely overruled

.....By SOL I assume you mean applications for division accepted out of time?... Be interested to see your source stats, but there are fairly strict rules around accepting an app out of time.

"Genuine domestic basis" can mean anything.

Actually fairly well covered in paragraph 2 here >>> ACTS INTERPRETATION ACT 1901 - SECT 2F De facto relationships

Steve... I'm not totally dismissive of your concerns, but consider (among other things such as the public policy considerations mentioned by @Rod above ) that there aught to be some right for a long term de facto partner to walk away from such a relationship which they would have have contributed to either financially or non financially (especially if there are children) with some consideration to their contributions..... & if you accept that, then why would they be treated any differently with regards to property division simply because they didn't marry (& that could have been for a number of reasons)

Anyway, if you do enter into a live in de facto relationship, there are the same opportunities available to you to preserve initial contributions as there are available for married couples.... I also recommend that in lieu of anything else, that you take a 'snap shot' of all your assets, savings, super etc at the beginning (include property valuations if you have any) because that can be a great resource to have to prove initial contributions if things go sour

 

[Steve W]

The difficulty with your argument is that the law is setup to protect the weak (traditionally been the woman), young, gullible and naive.

People come into relationships with all sorts of property and then establish a role that suits them, or is at least something they will tolerate.

There are public policy considerations

• as to whether homemaking should have the same economic worth as the partner with a job; and
• is it the role of the State to support someone leaving a relationship when there are significant assets that have been acquired during that relationship?

A well-written BFA will overcome your problems, and it is mental laziness and penny-pinching by some that contribute to their own issues when relationships end.

I could write a paper on your premise however I have other things to do and I suspect others already have. Maybe read some journal articles around how our family law arrived at it present state. There have also been a number of reviews over the years.

I'd argue that Australians aren't lazy, but that the Family Law Act is lazily written. Because of its poor drafting, the application of Family Law is almost wholly an application of common law determined by judges on a whim, and in the midst of trials, in overwhelmed courts.

BFAs do little to provide ambitious people with certainty, as weakness is the condition under which BFAs have been set aside. Nor should Australians be expected to sign BFAs just to engage in romantic affairs when individuals have no basis on which to know if they should sign a BFA. It would be far better in the spirit of justice to fix the law itself. If a 'weak' or 'strong' person exposes themselves, they do so under well-defined terms at least.

 

[Steve W]

if you accept that, then why would they be treated any differently with regards to property division simply because they didn't marry

My opinion is that unmarried Australians conduct their affairs according to the titles of assets that exist as they are. Unmarried women are perfectly capable of asking for asset titles to include their name as they assume that titles have legal significance. Australian women are capable of demanding marriage in exchange for children, commitment, and homemaking. Australians do not conduct romantic affairs with the assumption that a judge may or may not set aside all titles arbitrarily, at an arbitrary time, on an arbitrary distinction. I do not agree that the list of considerations is remotely adequate for couples to know whether they are subject to laws designed for an explicit, life-changing commitment under Marriage vows. Even worse, nor do their lawyers.

I don't claim to be 100% right about this, but there are law professors who have similar concerns about the Marriage Act as it stands. I'm only repeating widely held criticisms.

 

[Tim W]

@Rod... @Atticus

Save your breath comrades.
Water or no, the horse won't drink if it doesn't know it's thirsty.

 

[Atticus]

I don't claim to be 100% right about this....... .I'm only repeating widely held criticisms.

Problem is a lot of what you are writing is just not so. You are also being totally one sided in your views.

I suspect @Tim W is correct & it's a bit of a wasted exercise trying to bring you to a point of recognising where you are mistaken so I will just recommend that when (if) you research the subject further, do so with an open mind rather than copious amounts of confirmation bias...

Anyway, that's enough for me... I'll just leave you with a few more points where the Family Law Act treats marriage differently than a de facto relationship ....

MARRIAGE

• Immediate right to apply for property settlement
• No requirement to prove nature of relationship
• Time frame for settlement is 12 months after divorce (however long after separation that occurs)
• Can file a settlement anywhere in Australia, no need to satisfy any geographical requirements

DE FACTO

• 2 years before you can apply for property settlement (assuming no children)
• Need to prove not only that relationship lasted minimum of 2 years but that it was a genuine domestic relationship for that length of time
• Time frame for settlement is 2 years after separation
• Need to satisfy the court of geographical requirements pursuant to section Section 90SK Family Law Act…. Same applies for spousal maintenance

Also..... Marriage immediately revokes any existing will/s...... De facto does not

 

[Rob Legat - SBPL]

* Marriage immediately revokes any existing will - unless that will specifically states it is made in contemplation of marriage.

 

[Atticus]

Marriage immediately revokes any existing will - unless that will specifically states it is made in contemplation of marriage.

Thanks Rob..... Hadn't heard of that..... Is that a state specific thing or Federal?

 

[JazKaz]

@Atticus said
“Thanks Rob..... Hadn't heard of that..... Is that a state specific thing or Federal?”

I am not certain of the context that @Rob is referring to but I think it is ‘a common law thing’.
I’ve heard the term being expressed in cases where there is an exchange of items upon ‘contemplation of marriage’ where marriage actually takes place after say an engagement ring is given to one party, see the case of Papathanasopoulos v Vacopoulos [2007] (NSWSC) 502.

It has also been referred to in wills and probate Acts regarding testators where they are to marry and any wills they had previously are revoked upon marriage. This is unless it can be proven that a will was enacted ‘in contemplation of marriage’.

 

[JazKaz]

@Atticus said
“Thanks Rob..... Hadn't heard of that..... Is that a state specific thing or Federal?”

I am not certain of the context that @Rob is referring to but I think it is ‘a common law thing’.
I’ve heard the term being expressed in cases where there is an exchange of items upon ‘contemplation of marriage’ where marriage actually takes place after say an engagement ring is given to one party, see the case of Papathanasopoulos v Vacopoulos (2007).

It has also been referred to in wills and probate Acts regarding testators where they are to marry and any wills they had previously are revoked upon marriage. This is unless it can be proven that a will was enacted ‘in contemplation of marriage’.

 

[Rob Legat - SBPL]

It's a legislated thing. For example, section 14(3) of the Succession Act 1981 (Qld):

"(3) Also -
(a) a will made in contemplation of a marriage, whether or not that contemplation is stated in the will, is not revoked by the solemnisation of the marriage contemplated; and

(b) a will that is stated to be made in contemplation of marriage generally is not revoked by the solemnisation of a marriage of the testator."

Of course, proving that you made a will in contemplation of marriage - which is not specifically stated in the will - will have to be proved in some way.