Wondering about a pre-nup.
QUESTION:
I am in my early 60s and work part time still, with no children. I have a partner of three years (as “boyfriend” just doesn’t sound right at my age). He is the same age as me and is a retired widower with adult children, two still living at home. We do not live together. He lives 60km away and we stay at each other’s place on weekends. I have been burned badly by a past relationship but that was a live-in arrangement and he claimed half of everything I had and he got it, even though he did not contribute financially in any way to anything I amassed during the relationship and we never had joint accounts. I am very nervous about what to do going forward, so my questions are: Is this classed as defacto? Do we need to have a pre-nup done? Many thanks.
ANSWER:
Your situation is a common one. There are many people who seek a second relationship, but are reluctant to live with each other for personal and financial reasons.
The Family Law Act makes provision for defacto relationships as well as married relationships. In order to qualify as a defacto relationship, people must have lived together on a genuine domestic basis for two years or more, or they may have lived together for a shorter period but have a child.
You and your Friend are not likely, therefore, to be classed as living in a defacto relationship at present.
In some circumstances a person in the same position as your partner might suggest that you are only living apart during the week because of the distance between you and that, despite the distance, a defacto relationship exists. It would be important if such a suggestion were made to look at some of the other aspects of your relationship. For example, do you hold yourselves out as a couple?
Do you have a joint bank account? What are the financial arrangements between the two of you? Based on the limited information in your letter to the panel, we do not believe that your current circumstances would be classified as a defacto relationship.
You can enter into a financial agreement pursuant to the Family Law Act, commonly known as a “pre-nup”.
Such an agreement would make provision as to how the property of each of you is divided between each of you in the event that you separate in the future.
The basis for an agreement such as that would be an arrangement in contemplation of a defacto relationship in the future.
You can also enter into a financial agreement even if you are already in a defacto relationship.
One of the most important aspects of agreements such as this is that each of you must receive independent legal advice from an appropriately qualified lawyer prior to signing the agreement.
The starting point for you would be to consult a lawyer who practices in family law to discuss both your current situation and your proposal for a financial agreement. You would also need, of course, to be sure that your partner would be happy to sign a financial agreement.
The panel can understand you being nervous about a new relationship, given what has occurred to you previously. It is best for you and safest for you to sign a financial agreement with your current partner and, provided that the document is done correctly, it can be legally binding on both of you.
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