In assessing whether you are living together on a genuine domestic basis, the Court may look to

• The duration of the relationship;
• The nature and extent of common residence;
• Whether a sexual relationship exists;
• The degree of financial dependence or interdependence and arrangements for financial support;
• The ownership, use and acquisition of property;
• The degree of mutual commitment to a shared life;
• Whether the relationship is or was registered under a prescribed law of a State/Territory;
• Arrangements for the care and support of children; and
• The reputation and public aspects of the relationship.

No one factor should be considered more important than any other. However, it would be expected that the more factors that can be proved would help to determine that there was a de facto relationship and, conversely, the more factors that can be disproved would help establish that there was not.

Similarly, there are no minimum or maximum amounts that can be attributed to any factor, such as a minimum number of nights per week that might indicate if a ‘common residence’ has been maintained.

In 2009, the Federal Government made amendments to the Family Law Act that gave de facto couples – including same-sex couples – almost the same rights and obligations as married couples.

The Family Law Act recognises that a party could even be in multiple de facto relationships, and that even a person who is married could still be a party to de facto property proceedings.

Unlike marriage, de facto status is not entirely portable. While it is recognised in all states of Australia, Canada and New Zealand, it is not recognised in the USA and many other countries.

More information

Find out more about our Family Law services, or contact our experienced family lawyer, Mark Orchard, for a free initial consultation.

Phone: 07 4639 0358
Email: morchard@cp484.ezyreg.com

There are a number of considerations that will impact both the separating couple’s property settlement and the business:

1. The need to continue running the business while working out the terms of a property settlement can have a major impact on the performance of a business. In some cases, the levels of conflict between the spouses can be so high that this spills over into the workplace, affecting staff and customers.
2. If the couple cannot cooperate and agree on how the business should be run pending property settlement, the business may end up suffering extreme cash flow problems or damage to its reputation. If the parties plan to co-own the business, it may be necessary to delineate very specifically, in writing, each party’s respective duties and responsibilities.
3. One spouse may seek to exclude the other from being involved in the business, leaving them without access to an income or information about the performance of the business. In the most extreme circumstances a forensic accountant may need to be hired to thoroughly analyse the business to ensure it is not being inappropriately run down or to determine that money is not being hidden.
4. If the business is to be retained by one party who “buys out” the other party, then the parties will need to know the value of the business. Both parties should be wary of simply looking at the value on the balance sheet. There are many different ways a business can be valued, and sometimes a forensic accountant or an appraiser might need to help with the valuation process.

To minimise the financial fallout in the event of a breakup it is desirable to have a pre-nuptial agreement. It may seem unromantic at the time, but the best protection is to plan for the possibility of a divorce before the situation arises. If you started and built the business prior to your marriage, a prenuptial agreement can specify how the business will be treated upon divorce.

If you take the proper steps, the end of a marriage does not have to mean the end of a business. Many couples are able to negotiate a fair settlement of their assets, including their business. In these cases, appropriate advice should be taken as to making this settlement final and binding, and taking into account what would be a tax effective outcome.

While owning a business can complicate the division of your assets, an experienced family and divorce lawyer will be able to guide you through this often very complicated process.

More information

Our Toowoomba-based family law team has more than 30 years of experience in resolving family law matters, and has a strong reputation for a solution-focused approach to all cases involving married and de facto couples.

Whether you are separated, divorced, or thinking about separating, we understand the impact that family disputes can have on your life, and appreciate that the legal process can be overwhelming during these difficult times.  With our expertise in negotiation, mediation, and, where required, litigation and advocacy, we will provide clear and compassionate advice so that you can make fully informed choices.

Contact us for a free initial consultation* (conditions apply) with our senior family lawyer:

Mark Orchard
Phone: 07 4639 0358
Email:  morchard@cp484.ezyreg.com

In more difficult cases, a Court can be asked to rule on who will retain the pets. While many owners treat their pets as if they were their own children, the Family Court’s approach is much less emotive. The Court considers a pet as property of the parties to the marriage (no different from cars or white goods).

The Court does, however, exercise an overriding principle of justice and equity and will do its best to accommodate the needs of both parties when dividing up property, including pets. A Judge will be guided by who initially bought or acquired the pet; who trained the pet or who performed the grooming; who has paid the veterinary fees and met the costs of caring for the pet; along with evidence from others concerning the bond the pet enjoys with one spouse or another.

Where children of the relationship exist and have a bond with the pet, a Judge may think that it is in the best interests of the children for the pet to pass with the children between the households, or that the pet live in the home where the children primarily reside.

If the pets are intended as breeding stock, then a valuation may be needed, and the party seeking to retain the pets may be required to meet a property adjustment in favour of the other party.

There are no hard and fast rules and the likelihood of one outcome over another will vary from case to case depending upon the facts and the exercise of the Court’s overriding discretion.

More information

Our Toowoomba-based family law team has more than 30 years of experience in resolving family law matters and has a strong reputation for a solution-focused approach to all cases involving married and de facto couples.

Whether you are separated, divorced, or thinking about separating, we understand the impact that family disputes can have on your life, and appreciate that the legal process can be overwhelming during these difficult times.  With our expertise in negotiation, mediation, and, where required, litigation and advocacy, we will provide clear and compassionate advice so that you can make fully informed choices.

Contact us for a free initial consultation* (conditions apply) with our senior family lawyer:

Mark Orchard
Phone:  07 4639 0358
Email: morchard@cp484.ezyreg.com