If, when you began the relationship, the other person claimed to be single, or said that they had already separated from their spouse and simply had not yet formalised a divorce, and you only discovered after living together for many years that their marriage had remained on foot, that does not mean that you have no property rights at all.
Nor can the other person rely on the mere fact that they still have a legal spouse to deny outright the de facto relationship that may exist between you and the property claims that go with it.
Under Australian family law, the heart of a de facto property settlement generally lies not in who is the “legal wife” or who is labelled “the third party”, but in whether a de facto relationship recognised by law has been formed between you and the other person, what contributions each of you has made to the family and to the property, and what assets, liabilities and financial resources currently need to be taken into account.
A Person Who Is Still Married May Also Be in a De Facto Relationship With Someone Else
Australian law allows a marriage and a de facto relationship to exist at the same time in certain circumstances.
The fact that the other person remains legally married to someone else therefore does not automatically rule out the possibility that you and they are in a de facto relationship.
The court generally needs to consider the parties’ actual life together as a whole, including how long they lived together, whether they lived at the same address over a long period, how living expenses were borne, whether they jointly cared for children or shared the housework, whether there was financial dependence, and whether they jointly planned housing, investments, a business or their future life.
Whether the relationship was public is only one of the factors considered, and is not a decisive condition.
If the other person concealed your relationship throughout, or the two of you rarely appeared publicly as a couple, you may need further material about living together, shared spending, financial arrangements and daily life to show that a genuine and stable partner relationship had formed, rather than an ordinary dating relationship.
Concealing a Marriage Does Not Automatically Change the Proportions of a Property Settlement
The other person concealing their marital status may cause the other party serious emotional harm, but a property settlement under Australian family law is generally not a punishment for deception, an extramarital relationship or fault in the relationship.
The court is more concerned with the contributions each party made to the property and to the family during the relationship.
For example: whether you met mortgage repayments, rent, renovation costs or other household living expenses; whether you used your own income to carry the main household outgoings, so that the other person could keep saving or accumulating assets; whether you were responsible for the housework and the care of children over a long period; and whether you helped run the other person’s company or business without payment, or for remuneration clearly below normal levels.
Even without a formal agreement, those contributions do not necessarily lose their legal significance merely because the assets are registered in the other person’s own name.
Property and Companies Registered in the Other Person’s Name Do Not Mean You Have No Property Claim
When family law deals with a property matter, the final outcome is not decided solely by the name on a title deed, a company registration or a bank account.
If you put your own savings into renovating or improving property held in the other person’s name, carried the couple’s living expenses over a long period, or spent years helping to run a company the other person controlled without receiving normal remuneration, those financial and non-financial contributions may all affect how the property is dealt with.
If the property, company, funds or trust in question also involves the interests of the other person’s legal spouse, a more detailed analysis of the assets is required.
That usually means establishing when the assets were acquired, where the purchase funds came from, what each party actually contributed, who holds the assets in name and who actually controls them, and whether any property is held through companies, trusts, related entities or other third parties.
The fact that the other person’s legal spouse has already applied for a property settlement does not mean that the de facto partner’s claim automatically falls away either. Where both sets of claims involve the same pool of assets, however, the court needs to work out more comprehensively what each party’s interests are and what property arrangements exist or are proposed.
Evidence of the De Facto Relationship and of Property Contributions Matters a Great Deal
In cases of this kind, the evidence often has a direct bearing on the findings made about the de facto relationship and about property contributions.
Documents capable of proving that you lived together and shared a family life — lease agreements, bills, letters from banks, material sent by government or commercial organisations to a shared address, and payment records for rent, mortgage repayments, renovations and shared living expenses — may all be of considerable value.
If you were involved in running the other person’s company, you should also keep, so far as possible, material capable of showing what work you actually did, the time you put in, the extent of your involvement in the company’s operations, and whether you received wages or other remuneration.
Where the main financial material is in the other person’s hands, it is not advisable to access their private bank accounts, email or other password-protected accounts without authorisation, nor to obtain material by guessing passwords or by similar means.
It is better first to organise the asset information, company names, bank transfers, transaction dates and other property leads that you lawfully hold, and then to have a family lawyer assess whether further material should be obtained through formal financial disclosure, valuations, court processes or other lawful means.
What Should You Do If the Other Person Transfers Assets or Manufactures Debts?
If, around the time the de facto relationship breaks down, there are unusual large transfers, gambling expenditure, sales of property or vehicles at an undervalue, changes to company shareholdings, large payments to relatives or friends, or personal or company funds used to pay expenses plainly unrelated to the family, the relevant evidence should be preserved as early as possible.
The key points usually include the date of the transaction, the amount, the recipient, the purpose of the funds, the explanation the other person gave for it, and when you discovered the conduct.
The court does not treat every reduction in assets as improper conduct. There is a clear difference between ordinary household living expenses and genuine business losses on the one hand, and deliberately or recklessly dissipating assets or unreasonably increasing debts on the other.
The court will form its view by reference to the nature of the expenditure, the amount, when it occurred and the state of the parties’ relationship at the time. In an appropriate case, the financial consequences of one party deliberately or recklessly reducing the property may affect the final property outcome.
Emptying a joint account without authorisation, hiding a vehicle, moving assets, accessing the other person’s private accounts or installing surveillance software in order to “protect yourself” may, however, equally create fresh legal risks, and may affect how the court assesses your good faith in the use of property and in financial disclosure.
If you already hold specific material indicating that real property, company shares or other significant assets are about to be sold, transferred or disposed of, you should have a lawyer assess as soon as possible whether an interim injunction or another asset-protection measure is needed.
A De Facto Property Settlement Generally Has a Two-Year Application Time Limit
After a de facto relationship ends, an application to the court for a property adjustment generally needs to be made within two years of the breakdown of the relationship.
Being outside the two years does not mean that an application is absolutely impossible, but the leave of the court is generally required first, and whether the court grants it will depend on the particular circumstances of the case.
So if the other person keeps saying “we will divide the money once the house is sold” or “we will deal with it once the business is doing well”, relying on such verbal promises alone may carry risk.
A secret relationship is especially prone to the parties giving different accounts of the actual date of separation, so material that helps confirm when the relationship ended should be kept as early as possible — for example, messages clearly ending the relationship, records of moving out of the shared home, the date on which shared spending and financial dealings stopped, and evidence that each of you began living a separate life.
It is particularly important to note that the two-year period generally runs from when the de facto relationship actually broke down, and not from when you later discovered that the other person still had not divorced, discovered hidden assets, or first learned that you might hold a property interest.
If You Lived Together for Less Than Two Years, Is a Property Settlement Completely Out of the Question?
Generally speaking, a de facto relationship that has lasted, continuously or in aggregate, for two years is one of the important thresholds for the court to deal with a de facto property adjustment.
But less than two years does not necessarily mean that there is no opportunity to apply.
If the parties have a child together, the de facto relationship has been registered in accordance with the law, or one party has made substantial contributions to the other party’s property or to the family of both, such that serious injustice would result if the court made no property order, the relevant conditions may still be satisfied.
Whether a property claim exists therefore cannot be judged on the single factor of “whether you lived together for a full two years”.
A Reminder From NS Legal
The other person not yet having divorced does not mean that your years of living together, your financial outlay, your work in the home or your contributions to their company and assets do not exist in law.
What a case of this kind really calls for is an analysis of whether a de facto relationship has been formed between the two of you, what financial and non-financial contributions you can prove, which assets are in the other person’s name or under their actual control, and whether those assets also involve the interests of their legal spouse, of companies, of trusts or of other third parties.
If the relationship went unacknowledged for a long time, the parties dispute the date of separation, or assets have already been transferred or sold and debts increased, you should organise the evidence and seek professional legal advice as early as possible, so that an important procedure or application deadline is not missed.
This article provides general legal information only and does not constitute legal advice for any individual’s circumstances.
