Is it time to get a family lawyer involved? – A scenario involving de facto relationships

Sometimes family disputes require legal mediation. When it comes to court proceedings, a solicitor specialising in areas of family law may be able to help you explore your legal rights and responsibilities.

Here is one situation involving de facto relationships, where a family lawyer may be valuable:

De Facto Relationships

Carrie and Mr. Big have been in a relationship for six years. They are not married and do not have any children together. In 2008, Carrie and Mr. Big decide to buy a penthouse and live together for the first time. Mr. Big puts a deposit on the property using his savings. The penthouse is in Big’s name, as is the mortgage with the bank. Carrie has no savings, but makes monthly contributions to the mortgage out of her writer’s salary. Three years later, Carrie and Mr. Big break up. Mr. Big tells Carrie that she has no entitlements as they were not married and she did not contribute to the deposit on the penthouse. Heart broken and homeless, Carrie seeks solace in her three best friends – Merinda, Samantha and Charlotte. Upon learning about Carrie’s situation her friend Miranda (who is also a lawyer) assures Carrie that she has a claim to the penthouse under current family law and encourages her to seek legal advice.

While this may simply be adapting a story line out of the popular HBO series, Sex in the City, this type of scenario is surprisingly common. As society continues to shift away from what would be considered the ‘traditional lifestyle choices’ of the past, more and more couples find themselves living in de facto relationships.  And just as relationships have evolved, so too have legislation and regulatory processes that govern them.

Many do not even realise they are in a de facto relationship until it comes time to review their legal rights. Sadly, this often occurs during a relationship breakdown. So what is a de facto relationship and what are your legal rights as an individual living in such a relationship?

The Family Law Act defines a “de facto relationship”, as a couple living together on a genuine domestic basis, who are not married to each other and who are not related by family. The Act stipulates that a de facto relationship can exist between a man and a woman and between two persons of the same sex.

Property disputes between people living in de facto relationships also fall within the provisions of the Family Law Act. In order to have a claim on any property, the law requires you to demonstrate that either:

  • You have lived in a de facto relationship for two years; or
  • You have a child or children together; or
  • You have made significant contributions to the relationship

In the case of Carrie and Mr. Big, Carrie was able to make a claim on the penthouse having made financial contributions to the penthouse for the last three years.  But Carrie’s entitlements to the penthouse were not solely based on her contributions to the mortgage. The law looks at many different factors in determining the financial entitlements of each party. Some of these include:

  • The duration of the relationship
  • The nature and extent of a common residence
  • Whether a sexual relationship exists
  • The degree of financial dependence or interdependence between the couple and any arrangements for financial support between them
  • The ownership, acquisition and use of their property
  • The degree of mutual commitment to a shared life
  • The care and support of children
  • Public aspects and reputation of the relationship.

Relationship breakdowns can be psychologically taxing enough without having to deal with the division of property and financial assets.  Knowing your rights and responsibilities as a de facto couple is the key to avoiding drawn out (and expensive) legal proceedings. If your de facto relationship has broken down, it is important that you protect your entitlements and seek experienced family law advice.

As Brisbane’s leading Family Law firm, Rostron Carlyle’s can help you understand you rights and responsibilities as a de facto couple. Their dedicated team of family lawyers can answer all your questions and help you and your partner avoid unnecessary court proceedings. Contact them today on (07) 3009 8444 for more information.

Is it time to get a family lawyer involved? – A scenario involving child support

Despite our best efforts, family disagreements can sometimes evolve into full blown legal disputes. For those involved, it’s often hard to take a step back from the issue and figure out ways forward. A solicitor specialising in areas of family law may be able to help you deconstruct the issue and identify your options.  Here is just one situation in which a family lawyer may be valuable:

Paying Child Support

Michael paid his former wife, Sarah, $400 a month to support their 4 year old daughter. When Michael was laid off, he called Sarah to arrange a change in his child support payments. He explained that, due to the layoff, he could not afford to pay $400 to which Sarah responded, “Okay. Pay $100 for now”. Six months later, Michael found another job and raised his support payments back to $400. During this time, he had made 6 payments of $100. Two weeks after starting at the new job Sarah called and told Michael she expected him to pay the $1,800 he had not paid during the layoff. Michael replied that he did not owe any money because they had agreed to the child support reduction during his layoff. Sarah disagreed, claiming she had not given up the right to $400 a month but had merely permitted Michael to defer full payment until he was rehired. When Michael refused to pay, Sarah took him to court.

Unfortunately this type of scenario is all too common. Many different scenarios can create changed circumstances which would affect the amount of child payment required. For example, if the paying parent experiences a large decrease in income, the court can order the child support reduced. Or, if the child’s needs grow, such as if the child becomes ill or disabled, the amount of support can be raised. Child support payments may be modified at a parent’s request or in the event of a change in circumstances but these modifications will not happen automatically. One of the parents must request the change by a formal motion to the court.

In the case involving Michael and Sarah, the judge ruled that the evidence did not support Michael’s claim that he was excused from the $300 per month and he was ordered to pay the outstanding $1,800 in addition to the usual payments of monthly support.  In this case, Michael made the mistake of reaching an informal oral agreement with Sarah to modify his child support payment. The problem with oral agreements is that they are often vaguely worded and the memories or understanding of the parties may often differ. Thus, any agreement by parents to modify child support should be put in writing. It is also a good idea to have a judge sign a court order based on the agreement.

If you become unemployed or have some other extenuating circumstance, it is important you seek legal advice and have your child support amount modified. Only the court can change a mandated child support payment, so any modification would have to be submitted to a judge. If both spouses agree, it is usually a pretty simple process. Where disagreement arises, the request will need to be submitted a family law solicitor for review.

Child support is a topic which tends to divide opinions. No separation is easy but understanding your rights and responsibilities involving child support payments can be.  As Brisbane’s Family Law Specialists, Rostron Carlyle can help you understand family law matters such as child support, child custody, visitation and alimony. Their dedicated team of family law solicitors can answer all your questions and help you avoid situations like the one mentioned above.