With the increase in unmarried couples living together and the decline in marriage as a means of formalising long term relationships, de facto law has become a hot topic. So are you in a de facto relationship or not?
A question people often ask is: what happens to personal and jointly accumulated assets in the event of a break-up? While this is important couples often fail to consider the worst case scenario…i.e. what happens if you or your partner suddenly die?
When a person dies in Victoria without a will the law determines who your next of kin is, and this in turn determines who is entitled to receive your assets. If you were in a de facto relationship, your partner will be entitled to all your assets (if there are no children). Alternatively, if you do have a will and have not included your de facto partner in your will, he or she can make a claim against your estate.
A couple is regarded as being in a de facto relationship if, whilst not married, they are living together as a couple on a genuine domestic basis and either:
1. have lived in that manner continuously for a period of at least 2 years; or
2. have a child of the relationship who is under 18 years of age.
Keep in mind that a couple does not necessarily have to live together on a full time basis to be considered to be in a de facto relationship.
A number of factors are considered in determining whether or not a couple was living together on a genuine domestic basis. These include the duration of the relationship, whether a sexual relationship exists, the degree of financial dependence or interdependence, the ownership, use and acquisition of property, the degree of mutual commitment to a shared life, and public perception of the relationship.
Even if you think your assets are meagre, remember that your accumulated superannuation and any attaching life insurance policy may alone create a significant pay-out. Therefore, it is important to think about who you want to receive your assets on your death. Having a valid will in place can avoid a battle between your immediate family and your partner.
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