Everyone is presumed to know the law and ignorance is no excuse. But how fair is that when many people don’t know the law, or have misconceptions of what they think the law is?
The difficulty is, although we exist in the Information Age, there is still plenty of misinformation circulating when it comes to the law! To break that trend, let’s examine 5 common legal myths (and the truth behind them!) that we frequently hear regarding De Facto relationships and Estates.
1. If we live together for one year, we are automatically De Facto.
This is a big, fat ‘false!’. There’s actually no automatic rule for deciding whether a couple are De Facto or not. That will be determined by assessing whether a broad range of circumstances are present in the relationship, such as:
- Past and future financial arrangements,
- Whether you are living in the same house,
- Whether you are having sex or not,
- Whether you have children or not
. . . and the list goes on! The more of these circumstances that are present in the relationship, the more likely the couple have attained the status of ‘De Facto’. The overriding requirement here is that you must be genuinely living together as a couple.
2. If a married or De Facto couple split up, all property is divided equally.
This myth also gets ‘false’ status. It's very rare in law for there to be a “hard and fast rule” (despite us wishing there was!), because every legal issue has its own complexities. When determining division of property, who gets what all comes back to that four syllable word that we lawyers love to use: the “circumstances”. In this instance, the circumstances which are relevant include things such as:
- Past and future financial arrangements,
- Superannuation entitlement,
- Ownership of property, and
- Non-financial contributions.
The overriding requirement is that an Order be “just” and “equitable”, taking into consideration all the relevant factors. That is, the Judge who is deciding your case must attempt to do the fairest thing given all the circumstances.
3. If a married or De Facto couple split up, the children have to spend equal time with each parent.
Wrong! If you’re beginning to sense a theme here, you’d be correct! Circumstances are pretty important here, too. The time a child will ultimately spend with each parent depends on factors such as:
- Maintaining a meaningful relationship with both parents,
- Protecting the child from harm,
- The child’s age and maturity,
- The child’s views, and
- The relationship of the child with the parents and grandparents.
The main thing here is that an Order must be in the child's best interests.
4. If I get left out of an Estate and it's not fair, a Court will always give me a fair share.
Well, that depends on what you mean by fair! Whilst the Court does have discretion to step in and assists those who have been left without provision in a Will, whether the Court will actually do that depends on things such as:
- Whether you fall under a specific ‘class’ of person (such as a spouse, child or step child of the deceased person),
- Whether you require maintenance and support,
- What your current and future financial arrangements are, and
- Disparities with other beneficiaries.
At the end of the day, the goal is that any Order be proper and appropriate, given all the circumstances. So be wary of assumptions! For more on this, check out this article for a breakdown of different factors.
5. I can stop a claim against my Estate by leaving a small gift to the potential claimant.
This is a popular myth, and one you need to be aware of while writing your Will! A small gift won’t stop someone making a claim against your Estate. It still all depends on the factors listed in Number 4. If this is a concern for you, consult the Solicitor drafting your Will for advice. See Can I Write Someone Out of My Will? for more information on TFM Claims.
Conclusion
Sometimes the law isn’t as cut and dry as we would like! But that’s partly to enable our Judges to do best to achieve overall fairness and justice. Ordinarily, that can only be done by taking into account, you guessed it, the circumstances! That’s why it’s always best to consult a lawyer with the right expertise in your area of concern, to help you understand how your circumstances affect your rights.