The Effect of Relationships on Asset Retention

We all have close relationships with others. It is part of our humanity. Our parents, children, ourselves will marry, divorce, live with, separate, spend time with, people who are important to us. Our families deal with how that affects our own and family lives on a daily basis. What is forgotten is that the social experience of relationships has legal implications – yes “the law” does intrude into our lives.

When we marry, are in a de-facto relationship, or other domestic relationship, including a same sex relationship, those relationships impact on what happens to our assets when we separate or die. Claim may be made on the breakup of a relationship under the Family Law Act and The Property (Relationships) Act NSW and on death under the Succession Act NSW and the Superannuation laws. (1) The results of those claims affects farming families and country businesses whether they are operating under structures such as a company, a trust, in individual names but as agreed or in partnership, as a sole trader or by share farming arrangement.

Are you aware that:

(a) Married/de-facto partners (including same sex partners) can bring claims for property settlement on a break up of a relationship;

(b) A de-facto relationship does not necessarily need to be in existence for two (2) years – a claim may be brought if there is a child of the relationship or a significant contribution to assets;

(c) To be in a de-facto relationship, you do not necessarily need to live together full time;

(d) On death, a married spouse and a de-facto spouse can both bring a claim against an estate;

(e) If there is no Will and there is a separated married spouse and a de-facto spouse, both have an entitlement if the de-facto relationship has been in existence for more than two (2) years;

(f) A person in a close personal relationship (that is, providing domestic support and personal care whilst living together) may have a right for property adjustment (this includes close friends living together and other non-sexual relationships).  It could also give rise to a claim upon the estate.

What constitutes a de-facto relationship has been considered by the Courts. In November 2013, the Supreme Court of New South Wales in finding that a de-facto relationship existed made two statements that may be of interest: (2)

(a) In past judgments the following was said “The concept of living together does not relate to sharing a particular residence but whether a couple manifests a relationship of a “coupledom” which involves the merger of two lives”: (3)

(b) And again “..living together as a couple involves a personal commitment that is mutually acknowledged and of an emotional kind transcending the mere fact of the shared residential setting”. (4)

Although most people share a residence when in a de-facto relationship, you can have two (2) homes and spend time together. You can be in a de-facto relationship and not live together (7) seven days a week.

The complexities of our personal relationships have a financial impact.

There can be challenging and serious consequences for the retention of family and farming assets when relationships cease or people die.

Many of those consequences may be unintended but will be the results of the development of the law as our society and law changes.

If you are in any doubt as to the effect your relationship has upon yours and your family’s assets, legal advice will assist in clarifying your position and enabling you to plan for the future.