As you probably know, if you are in a relationship of three or more years duration you will be subject to the equal sharing provisions of the Property (Relationships) Act 1976 (unless you enter into a “Contracting Out Agreement” or “Prenup.”)
This applies to marriages, civil unions and de facto relationships and in the case of marriages and civil unions any immediately preceding de facto relationship between the parties will be counted as part of the marriage or civil union.
Whilst the date of marriage or entry into a civil union will be obvious, it is not always obvious when a de facto relationship starts. In fact, two people in a relationship can have different ideas as to when their relationship started. As this can impact upon the relationship property at issue on separation and even whether the Property (Relationships) Act 1976 applies at all, it is not unusual for the Family Court to be asked to determine the start date of a relationship for the purposes of the Act – and for that matter the date at which it ends.
So how does the Family Court decide? Do the parties need to live together under the same roof full time? No! Not necessarily! Do they need to be in a sexual relationship or share a bank account? Again, no, not necessarily. Whether a de facto relationship exists (and when it began and/or ended) is determined on a case by case basis. The Act sets out a list of factors that may be relevant, including the nature and extent of a common residence, whether or not a sexual relationship exists, financial dependence or interdependence, whether they are known to others as a couple. There are other factors listed too and importantly none of these individual factors are necessarily crucial. There may also be other factors not listed that are deemed to be relevant in a particular case.
So what does this mean?
It means that there is no absolute test that determines whether or not you are in a relationship, when it starts and when it finishes. It may also mean that despite thinking you are not in a de facto relationship, it may be found in the future that you were. That may mean you are subject to equal sharing under the Act when you didn’t even think you were in a qualifying relationship. Alternatively, you may think you are currently in a relationship and later be proved wrong! If you are married or in a civil union, the start date of your relationship may likewise be debatable.
The consequences of any of these scenarios can be significant. Given you may be found to qualify under the Act earlier than you may have thought, if you are thinking about getting a Prenup, you should consider talking to your straight talking lawyers at Arnet Law now!