Is your spouse entitled to half of your assets?
They can be a common fear amongst people entering into a new relationship, that their new spouse may automatically become entitled to half of their assets. The reality is, that in Australia there are a number of factors that affect what a person is entitled too in a property settlement. Just because you enter into a new relationship with a person, does not mean that person becomes automatically entitled to half your assets.
Whether or not a new partner has any claim against your assets depends on a number of factors under the Family Law Act.
The first thing that needs to be considered, is whether your new partner is eligible to bring a claim at all. To bring a property settlement claim under the Family Law Act a person first needs to be a party to a marriage, or in a de facto relationship.
It is easy to identify when a marriage has started. It is not so easy to identify when a de facto relationship has.
Going on a date with someone does not mean that you are at risk of them making a claim against your assets. When a de facto relationship has begun depends on a number of factors. Whether parties are in a de facto relationship can be an area of dispute. Even once you commence living with someone does not automatically mean that you are in a de facto relationship, although it can be a strong sign that you are.
In determining whether there is a de facto relationship the court will look at a number of factors under the Family Law Act. While there is no definitive list of factors, the court does look at a number of indicators such as:
If the parties are in a sexual relationship
whether there is a child of the relationship
whether or not the parties have a common residence
whether the parties have a mix of finances and if there is interdependence of financial support between the parties.
If there is a de facto relationship then a person may be eligible to bring a claim under the Family Law Act for a property settlement. A person is also eligible to bring a claim under the Family Law Act if the parties were married.
However, potentially being eligible to bring a claim, is not the same as having a claim to 50% of a person’s assets.
How strong that claim is will depend on a number of other factors that the court will then examine. The type of factors that are then taken into account include:
the initial contributions of the parties, ie what the parties owned before the relationship.
the financial contributions of the parties, such as who worked to financially supported the parties
the non-financial contributions of the parties, such as the role undertaken as a homemaker in performing domestic duties, or in doing the predominant child-rearing
any significant lump sum contributions received by the parties such as workers compensation payments or inheritance
the future needs of the parties including whether or not the parties have a claim to spousal maintenance, whether or not the parties have a disparity in income potential, or whether or not one party is likely to be have the substantial cost of raising the children of the relationship.
It is these factors that determine what type of percentage a person may be eligible for in making a claim for a property settlement under the Family Law Act.
It is important to get proper advice about your entitlements under the Family Law Act. Assessing your entitlements for a property settlement involves a review of very complex law. It is not as simple as making a claim for half of your partners assets just because you were in a relationship.
At Henniker’s we have experienced solicitors who can provide you with expert advice. We also have an Accredited Specialist in Family Law to assist you, and to provide accurate and comprehensive advice.
