"Living apart together"

Traditionally people have been categorised as 'married' or 'single'. Then sometime last century along came the 'de facto' concept.

This category is the hardest to define and the law, being the law, has tried very hard to put a definition on it.

In the family law context this is particularly relevant to property division following the breakdown of the relationship. The current law provides for de facto couples to have their financial relationship dealt with under the Family Law Act - using considerations very similar to those that apply to married couples.

Deciding if a relationship is a de facto relationship is fairly easy to do where a couple are cohabitating together in a long-term committed relationship and they have intermingled their financial lives.

But there is an increasing emergence of a new type of relationship - those who are 'living apart together'.

Generally speaking 'living apart together' relationships involve a couple who are in a relationship but maintain separate residences. This can be due to particular circumstances, such as working interstate of internationally. But it can also be due to an ongoing commitment to children or grandchildren from a prior relationship - sometimes where their may be concerns to protect wealth or assets from this newer relationship.

There can be an assumption by participants that living together apart will shield wealth or assets held at the beginning of the relationship from the other partner should the relationship breakdown. However there is an increasing amount of litigation which may give pause.

Firstly, the Court has, in several matters, stated that the parties own view of the nature of the relationship is not determinative. For example, in Sinclair & Whittaker (2013) the Full Court of the Family Court said "the ultimate decision as to whether there is a de facto relationship at any given time is a matter for the court and not a matter for the parties. Although their perception of the nature of the relationship is a relevant matter it is not determinative."

Secondly, the Court has directly addressed the issue of 'living apart together'.

In Jonah & White [2011] Judge Murphy said "In my opinion, the key to that definition is the manifestation of a relationship where the parties have so merged their lives that they were, for all practical purposes, 'living together' as a couple on a genuine domestic basis." Justice Murphy went on to say "The issue, as it seems to me, is the nature of the union rather than how it manifests itself in quantities of joint time."

It seems that the Court will increasingly find itself weighing up the rights of individuals to determine and define their obligations to and for other people against the rights of individuals to be compensation for their investment in a relationship. And as the Court has pointed out searching for a relationship of shared purpose and commitment is a difficult task for "an independent third person ... called upon to make an authoritative determination of events and decide what actually occurred when he or she was not present during the occurrence of those events" Justice Harman in Benedict & Peake [2014]. 

When a child is retained by a parent

From time to time the media report that a child (or children) is missing - retained by one parent, or other family member, from their other parent. Sometimes the whereabouts of the child are known but other times the child will be in hiding.

If the child is believed to be in Australia the parent who doesn't have the child can bring an application with the Family Law Courts to try and recover the child. This is known as an application for a 'recovery order'.

To obtain a recovery order the Court must be convinced that the child ought to be recovered and as such it is necessary to present the Court with details in relation to any existing orders, where the child usually lives, when the child ought to have been returned, steps that have been taken to locate the child, why it is in the child's best interest to be returned and the likely impact on the child if the child if a recovery order is not made. Any information as to where the child might be should also be included.

When the whereabouts of the parent who has taken the child are known and that parent participates in Court proceedings the Court can make an order that they return the child at a designated time and place. In some cases the Court will make an order that if they again remove or retain the child that they be arrested.

Should their whereabouts not be known, or should they not participate in proceedings, a recovery order can authorise or direct a person, such as a police officer, to take appropriate action to find, recover and deliver a child to a parent or other carer. In most instances the police will be the Australian Federal Police, but the State police can also be included.

The steps that can be taken include the stoping and searching of any vehicle, vessel or aircraft and the searching of any premises or place in which it is reasonable to believe the child may be.

Generally the police will not recover a child until a parent or carer is close by and able to receive the child.

If the child still can not be found, or if no information is available as to the possible whereabouts of the child, the Court can also make orders to help locate the child - known as a 'location order' or a 'Commonwealth Information order'. A location order requires a person to give the Court information about the child's location while a Commonwealth Information order requires a Commonwealth Government Department, such as Centrelink, to give the Court information about the child's location.

As a last resort the Court can also make a 'publication order'. This allows the media to publish details and photographs of the missing child and the person they are believed to be with.

End of a long marriage or relationship

Being single after being married for a long time (thirty or forty years) can be liberating for some people but mostly no matter whose decision it was to end the marriage both parties are frightened and uncertain. Suddenly the image of the golden years has changed significantly.

But with some careful planning you can not only survive but thrive. Here's four things to consider to help you on your way:

New family dynamics

Regardless of Court Orders or agreements there's a good chance that family dynamics will be different when the dust all settles.

The shared family home may be sold, or only one party living in it. This can mean that previously shared family occasions such as holidays and get-togethers will need to change.

There is no right way or wrong way for families to behave following separation but it is important to remember this kind of change is inevitable and it will take time to get used to.

Living arrangements

Moving out of the family home is always difficult.

It's important to think about what it will be like to live alone after sharing a house with someone for so many years. It's a big adjustment, but perhaps more so if you feel unsafe or worried about safety and asset protection.

Care giving

A reality of getting older is that some of us need extra help. You may be able to look after yourself fine right now but what about in 10, 15 or 20 years? You may have children or other family who can help care for you.

Or you may need to set aside finances to pay for care expenses when the time comes. It's important to plan ahead so you're prepared for the future.

Finances

Finances are a big deal at any stage of life but particularly so when nearing retirement age. On top of the day-to-day finances such as rent or mortgage, utilities and bank accounts there is social security, superannuation pensions and insurance policies to consider. If you were the one who didn't handle the finances during the marriage just getting an idea of these things can take time.

But if you are to divorce close to retirement age you may not have much time to financially re-establish your self.

Working with professionals who understand the impact of separation on retirement finances will give you the best chance for the years to come.

Interesting research on property divisions by agreement

Last month some research was released by the Australian Institute of Family Studies into just how parties finalise their property settlements - and it looks as though the stereotype that couples fight endlessly over property settlements is not borne out by the data.

The Institute conducted a study involving 9000 separated people from around Australia and found:

The average value of assets being divided was about $261,000.

• 1 in 4 of the couples had no assets to divide
• 1 in 3 had $40,000 or less in assets

Around half of the couples had finalised their property division within a year of separation.

• 4 in 10 of the couples with assets of $500,000 or more took on average two years to finalise their property settlement
• 1 in 3 of the couples with assets of less than $40,000 resolved their property division at the time of separation

According to the co-author of the research, Dr Rae Kaspiew, the majority of couples resolved their property settlement without using the Courts.

Dr Lixia Qu, the co-author of the research, said that about 60% of the couples thought the property settlement was fair. Fairness tended to relate to perceptions about the importance and value given to roles (financial and non-financial) undertaken during the relationship.

Both men and women underestimated their own share of the property division - women reported they received about 50% of the assets while men said they got about 37%.

The most common reason given be respondents for accepting a settlement was wanting to move on. About 33% of those who believed that they had received an unfair settlement saying they agreed to it in order to “get things over with”.