When did we start and when did we finish?
Defining when a relationship starts and when it ends is not as simple as you might think
By Ann Northcote, Director – Farrar Gesini Dunn
One of the first things a family lawyer will ask a new client is when their relationship started and ended. To some people this is not a difficult question. They may not have lived together until their date of marriage and that after a period of unhappiness, they moved out on a particular day. The reason why it is important is because the legislation is built around concepts such as the duration of the marriage or relationship and contributions made including indirect contributions, non-financial contributions, and contributions as homemaker.
The duration of a defacto or same sex relationship is also important for jurisdictional purposes. Unless you have had a child together or substantial contributions have been made, for defacto and same sex couples you need to have been in the relationship for two years. Similarly, you only have 2 years from the date you separate to make an application for financial issues to be resolved.
Your date of separation is important if the law is about to change. In the family law area, there have been at least 3 occasions when the date of separation was crucial. The first of these was in 1975 when the Family Law Act was introduced and the entire family law system was overturned. In 1989, the child support system was overhauled but only applied to people whose marriages had broken down after October 1989 (or who had a child born after that date). In more recent times, in 2009 the federal system took over property settlement for same sex and defacto couples but only applied to those couples whose relationship had ended after 1 March 2009.
The date of separation has always been important for obtaining a divorce since the legal requirement is separation for 12 months.
To separate, you need to form the intention, communicate that intention and then act upon it. Couples often don’t live together although they regard themselves as still in an intact relationship. For example, one person is posted overseas but the rest of the family remains behind either because the posting is unsuitable or children need to finish schooling. Similarly, one party may be in a nursing home and not be living with the other person but the relationship has not ended.
Therefore, if you form the view while living separately from your spouse that your relationship is over you need to communicate that either verbally or in writing.
You can, however, be separated while still living together. This is a concept known as “separation under the one roof”. Your lawyer can assist you in helping work out whether you have been separated under the one roof or not.
Just as knowing when a relationship ends can be difficult; knowing when it starts can be even trickier. If parties gave up their individual leases on premises they were renting and took out a joint lease on a property then again that is simple. However, what often occurs is that parties spend occasional nights at each other’s homes which, over time, increases until it may be full time. There may be periods where fewer nights are spent or where the relationship is suffering some problems and they spend few nights together.
Knowing when you are in a relationship is not just important in the family law arena. Government benefits and allowances are different depending on whether you are in a relationship or not and there are penalties for failing to disclose at the appropriate time. Similarly, members of the defence forces and people on overseas postings are entitled to certain allowances depending on whether or not they are in a relationship. Superannuation benefits upon death may be payable to a person in depending on the duration of the relationship with the deceased person at time of death.
Next month we will discuss a question that is related to this topic. Forget about duration of relationship-what happens if one party says” We were never in a relationship”?
For family law advice contact Farrar Gesini Dunn 6257 6477 www.fgd.com.au