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John Melis
John Melis,
Category: Australia Law
Satisfied Customers: 537
Experience:  Principal Lawyer at Legal AU Pty Ltd
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Do i have a legal leg to stand on to recoup money spent on

Customer Question

Do i have a legal leg to stand on to recoup money spent on my expartner that i invested into with a view towards arrangements to be marriage....as in breach of promise?
JA: Because family law varies from place to place, can you tell me what state this is in?
Customer: queensland
JA: Has anything been filed or reported?
Customer: the problem for me is that we were together 5 years he is the country guam, not as yet
JA: Anything else you want the lawyer to know before I connect you?
Customer: yes, is breach of promise here a law or not
Submitted: 2 months ago.
Category: Australia Law
Expert:  John Melis replied 2 months ago.

Dear customer, my name is***** solicitor, thank you for using Just Answer, I will assist with your question today. Please allow me a few moments to review your post and I will respond accordingly.

Kind regards
John Melis

Expert:  John Melis replied 2 months ago.

Dear customer, suing on a breach of promise in relation to monies spent for a marriage that did not occur, is a complex argument. There have been some cases in relation to this type of matter, they are difficult to argue, and costly to raise against the former partner.

Where you have lost money due to canceled contracts through as example, wedding reception centre, you may be able to claim a refund on the basis of the agreement signed, or the under the Australian Consumer Law.

Before raising this type of claim against a former partner, an in-depth assessment of the history of the relationship needs to occur.

Furthermore, where the parties' have been living together for an extended period of time, a financial claim may be raised as de facto couples.

Kind regards *****

Expert:  John Melis replied 2 months ago.

Dear customer, property settlement for de facto couples is legislated by the Family Law Act Pt VIIIAB which is identical to married couples in Pt VIII of the Act. De facto couples have a right to maintenance which includes sections 90SD to 90SJ of the act, and property division, which is sections 90SK to 90SN, and the splitting of the superannuation under section 90SM of the Act.

There are jurisdictional hurdles that must be satisfied to raise a property separation claim for de facto couples. There are also requirements that the relationship was for a period of two years. When these two factors are met, property or spousal maintenance orders may only be applied for after the couple have separated.

De facto couples may complete a property division between then selves or raise an application to the Federal Circuit Court. To raise a property separation claim, one of the parties must be an Australian citizen, or ordinary resident of Australia and in Australia when the application is filed. In addition, the de facto relationship must have been bona fide. This can be demonstrated through the duration of the relationship, nature and extent of common residence, whether or not a sexual relationship existed, the degree of financial interdependence, ownership of property, children and their care, performance of household duties, mutual commitment and support for each other, and public aspects of the relationship. A de facto relationship is defined under section 4(1) of the Family Law Act with the meaning set out in section 4AA.

The division of property interests are regulated by section 90SM, which is similar to section 79 for married couples under the Family Law Act, with section 90SM(4)(a) of the Act requiring that financial contributions are taken into account. Creditors are also entitled to become part of the property proceedings for separation for de facto couples under section 90SM(10).

Where one de facto partner raises a maintenance support need against the other partner, the applicant needs to satisfy section 90SD the geographical requirement, and matters set out in section 90SB, as well as matters under section 90SF of the Act.

The time limitation to raise a property division or maintenance claim is within two years of the relationship breakdown. However, this can be changed with leave of the court in section 44(6) of the Act in specific circumstances where it can be demonstrated that the applicant could not support themselves.

Where de facto couples are separating they can settle their division of the assets amicably through a financial agreement, or through the Federal Circuit Court.

Kind regards *****

Customer: replied 2 months ago.
We never resided together...but have travelled to each others countries for an extended period of time over 5 years. I invested over $10000 of a 240000 inheritance getting him over here his last 3 month trip to get a fiancee visa and now i feel scammed cause when the money ran out it feels he did too, just wondered if i had any recourse
Expert:  John Melis replied 2 months ago.

Dear customer, based on your recent post and considering a cost benefit analysis, raising a claim will hold insufficient merit, with the potential for legal fees to exceed the amount paid out.

Kind regards *****

Expert:  John Melis replied 2 months ago.

Dear customer, two people who are contemplating marriage and wish for an agreement setting out how their property and financial resources will be divided in the event of a breakdown of that marriage can enter into an agreement under s 90B of the Family Law Act 1975. This agreement is also known as a “pre-nuptial agreement”, however, that terminology does not exist in the Family Law Act.

If parties contemplate a lengthy engagement or want to ensure that their legal position prior to the marriage is secure, it is advisable that the parties enter into both a s 90B agreement, which will set out what will happen after the marriage takes place, as well as a financial agreement during a de facto relationship in relation to their legal position prior to the marriage taking place.​

In the case of Piper & Mueller (2015) the court found that there was nothing in the Family Law Act which prevented a financial agreement from being both an agreement pursuant to ss 90B and 90C provided the criteria for the agreement to be binding were met.

Kind regards *****