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Ask Deborah Awyzio Your Own Question
Deborah Awyzio
Deborah Awyzio, Solicitor
Category: Australia Law
Satisfied Customers: 863
Experience:  Bachelor of Laws (QUT), BIT (QUT), Family Law Accredited Specialist, over 12 years experience
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Re: Possible Defacto Relationship- Exposure to Risk Please

Customer Question

Re: Possible Defacto Relationship- Exposure to Risk
Please help me:
Features of Relationship:
1. I have been in a boyfriend/girlfriend sexual (not often) relationship for about 9-10 months, with a separatee with a 7 year old child (from her husband, she split from 15 months ago).She is going to through the divorce now, and is negotiating a settlement.
2. I am 56yo never married, no kids. She is 45. She has been in Australia for 13 years .She is a Citizen. She has no family here.
3. She doesn’t have much assets(as far as know), i.e: maybe $250k coming from the divorce and small property in Thailand She has a decent on-going casual/itinerant job and maintenance from her husband. She is probably getting net: $900pw, without additional benefits. I earn about twice her weekly income. I also have a paid off property worth about $800k, and also about $140k in super. I have an 87yo and sick mother who owns a substantial property, which I alone stand to inherit. I co-habit with my mother (she has a separate granny flat).
4. Her and I do not have any joint financial instruments or accounts
5. As of 4/2, my girlfriend and her daughter have come to live with me and my mother, as clearly stated an interim arrangement ,till she found an alternative place to live (she left her previous abode, because she went to Thailand for a couple of months in Dec/Jan- I was with her for a week). She has paid minimal rent to us, as we wanted to help her. Within a few weeks we found a rental for her. She did not want it and made some plausible reason not to accept it. Ok I said we can wait a few more weeks. I did clearly feel, she wanted to stay. Over the course of time I had become closer to her, and did indicate she could stay (without specifying a limit), although my intention was maybe an additional 6-8 months. In any case both my mother and I changed our minds. I must admit this was because I do fear the defacto laws and also I am not confident that we have long term future. I am the confirmed bachelor type.
6. So I have asked her to leave. She has agreed, although it has caused us both considerable stress &, especially profound disappointment for her. I did tell her we can stay together as boyfriend/ girlfriend, although I have always told her I cannot commit to living with her. As I told her – “I like the single life”. Sex does not play a big part in our relationship.
7. We have found a flat (2kms away), and a lease will be signed, in the next few days. She wants me to be co-leasee even though I won’t be living there. She may not have got the flat without me agreeing to that. I am going to ask the Real Estate agent if she alone can sign. I am prepared to pay her 1/3 of the rent, to help her. For how long, I am not sure-1-2 years.
8. To be sure, I have supported her a helluva lot financially in the last 9-10 months, because I do love and care about her. I am willing to assist her to in the future somewhat. But ultimately I do not wish to stay with her. I haven’t been adamant about that, because she appears very fragile now. But really I do not want to prolong this agony. Its no good for either of us.
9. We get along very well. I feel good with her however I do doubt her motives; have trust issues with her: (a) due our economic imbalances (b) her on-going materialistic demands are great (c) she does try to attempt to integrate our relationship to domestic one. i,e travel together, grocery shopping together joint arrangements etc. She may be genuine, but too many red flags arise ,because she seems to want to stay with me,even though I appear very shaky to her.
10. My questions are:
1. Given the extant of our relationship now , if I left her say soon after she settled in her new place,how much risk is there that I would come under the defacto laws?. What particular concerns me is the defacto Gateway of: “if one of the parties has made a financial contribution, then for the Court not to make an order would represent an injustice”. I do find this quite ambigious because might that mean that because I have given her some good financial support in the last 9-10 months , that her standard of living would decline if we broke up?. This concerns me, because as I read the Act, it appears that if the claiming party meets just one of the Gateways, they can claim – i.e don’t have to meet the 2 year relationship requirement. One often hears that the Court won’t hear a case if it is under 2 years in a relationships. This appears to contradict the what the Act says. Following is an outline of how I assist her: (a) gave her $10k to assist her in general (b) no rent (c) paid other bills to the tune of about $2000 (d) bought her fashion items worth about $500 (e) assisted significantly with her grocery bills as well as paying for our dates. And I am going to pay $160pw to help her with rent (I am doing this I must admit to accelerate her leaving). We have no joint financial accounts.So If I leave her very soon, how much risk, would I be at? Length of relationship – 9 months, living together – 4 months.
2. I do wish to help her. Say if I gave her say another $10k to cover rent for the next year and then left the relationship, would I be at extra risk.
3. I might stay her boyfriend if I had certainty I would be exposed to loss. For example Pre-Nups?. But I heard the Court can put those aside. What is the use then?
4. If I stayed with her, just as a boyfriend, how do I protect my assets absolutely?
Please I need help, I feel I am risking a lot, because of my good feeling for her
Yours
John
Submitted: 1 year ago.
Category: Australia Law
Expert:  Leon replied 1 year ago.
Good Afternoon
My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question.
The law says you have to be together fro 2 years before there is any defacto relationship
If you wish to protect your assets before the 2 years is up you need to have a binding financial agreement entered into.
These apply the same to married couples as well as defacto couple.
Here is some information.
http://www.diyfamilylawaustralia.com/Topic/bfa_what_is_a_bfa.html
This is the only way you can protect your assets from her.
Her ex has a claim against your girlfriend if they had assets in joint names and separate names during the relationship
I hope this makes sense?
Customer: replied 1 year ago.
Thanks Leon
What particular concerns me is the defacto Gateway of: “if one of the parties has made a financial contribution, then for the Court not to make an order would represent an injustice”. I do find this quite ambigious because might that mean that because I have given her some good financial support in the last 9-10 months , that her standard of living would decline if we broke up?. This concerns me, because as I read the Act, it appears that if the claiming party meets just one of the Gateways, they can claim – i.e don’t have to meet the 2 year relationship requirement. One often hears that the Court won’t hear a case if it is under 2 years in a relationships. This appears to contradict the what the Act says. The law seems to give the Court some latitude there, in terms of what constitutes an injustice.
Expert:  Leon replied 1 year ago.
Good Afternoon
It means that if the court does not give the party making the contribution their money back or the value of their contributions back if they are not financial it is not fair to that party.
She cannot make a claim against you until 2 years have passed as a defacto.