It Depends – Does marriage matter in family law financial cases?

In this edition of ‘It depends’, special counsel Craig Turvey talks about whether marriage matters in family law financial cases.

Craig, along with senior associate Steven Jell, will be presenting on this topic at our Annual Adviser Conference on 23 and 24 March 2023. Register now to attend in person or online.

Video transcript

Welcome to this edition of It depends. Today I’d like to talk about whether marriage matters in family law financial cases.

Family law property settlement or maintenance applications

Under the Family Law Act, you can make a property settlement or maintenance claim against someone if you’ve either been married to them or you can satisfy the court that you’ve been in a de facto relationship. Now, if you don’t fall within either of those two categories and you’ve been in a relationship with someone and you’re seeking financial recourse against them, you might not have any alternatives. So, it’s really important that you try and figure out and get advice as to whether you fit within either category or whether there’s perhaps nothing that can be done for you legally.

Does marriage matter?

It depends. If you’re married, it’s really easy to prove. You’ve got a marriage certificate. You can just attach that to your application. You don’t have any other evidentiary issues. And under the Family Law Act, it doesn’t have to be a marriage in Australia. It could be marriage in any other country. De facto cases are quite different however. Most people don’t register de facto relationships. So, what that means is that there’s not one magical piece of paper that you can wave around that will say, I have been in a de facto relationship with this person. It means that you might have some problems in terms of making a claim. There’s lots of people who think under the Family Law Act they’re in a de facto relationship when they probably aren’t or vice versa. The Family Law Act has some various criteria or conditions, guidelines that the court uses to try and figure out whether people are in a de facto relationship or not. But none of them are definitive, and not one is given more weight than the other. So, what that means is that it might be that you’re not living together with someone a lot of the time, but you have a joint commitment to a lifestyle together. The other person’s made sacrifices. That might be enough for you to be considered under the Family Law Act as being a de facto relationship. Or alternatively, you might not spend a lot of time together. You might not intermingle finances. There might not be any of those joint commitments to a shared intention to live together down the track. So, if you don’t satisfy relevant conditions under the Family Law Act, and if you’re not categorised as being in a de facto relationship, then you’re not going to be able to make a de facto claim. So, obviously, from an evidentiary perspective, there’s a lot of differences between whether you’re married or not. And it’s very important because if you can’t make a de facto claim, as I said before, then you might not have any financial recourse against the other person that you were in a relationship with.

How can I learn more?

During our Annual Adviser Conference on the 23rd and 24th of March this year, Steven Jell and I will be talking about whether marriage matters not just from a family legal perspective, but also superannuation and estate planning. If you don’t already have a ticket and you’re interested in that sort of discussion, please, buy a ticket, otherwise we’re more than happy for you to contact us directly if you have any queries or anyone else in our respective teams.