Separation and Short Relationships
Updated on Jan 04, 2023 • 4 min read • 605 views • Copy Link
Separation and Short Relationships
Whether or not a relationship would be considered to be a short relationship depends on all the circumstances. However, if a relationship lasts less than five years, it will likely be categorised as short. When the court makes orders for the division of property after short relationships, the financial contributions made by each party are of utmost importance.
If a couple has been married for less than two years, they must attempt marriage counselling before applying for a divorce. If you have participated in marriage counselling but there are no prospects of reconciliation, then you may apply for a divorce. A certificate must be filed with your divorce application which states that the possibility of reconciliation was discussed at marriage counselling.
For a couple to divorce the spouses must have been separated for at least 12 months. A couple can be separated even if they are still living under the same roof.
Short de facto relationships
If a couple was not married, a court may make a declaration that a de facto relationship existed if the parties lived together for not less than two years or if there is a child of the relationship.
Asset division after short relationships
Whether the parties to a short relationship were married or not, the principals underpinning property settlements remain the same. In short relationships, an assessment of what each party brought into the relationship is an imperative consideration when dividing the asset pool.
Anson & Meek
The 2017 Family Court decision of Anson & Meek dealt with a property division after a five-year marriage.
The parties in this matter were married in April 2008 and separated in March 2013, however the wife had considered herself in a committed relationship from late 2005. The parties did not commence cohabitation until marriage. There were no children of the relationship. The parties did, however, plan to have children. Those plans resulted in IVF treatment and failed pregnancies which caused the couple great distress. The first of those failed pregnancies occurred in mid-2007, prior to their marriage.
In mid-2007, the husband purchased a farming property for around $1M and it was registered in his name only. He paid a total of $1.1M including stamp duty and legal expenses. The husband borrowed $745,000 and paid the balance of nearly $400,000 from his savings.
At the time of the trial, the farm was worth around $1.7M. The parties’ interests in superannuation were roughly equal and the husband had interests in land and cash outside Australia which had existed before the relationship.
At the trial, the husband argued that the court should exclude his property outside Australia so that it would not be part of the division of assets. The court accepted this and adopted this approach. The trial judge ordered a split of the parties’ assets (in Australia) resulting in 60% to the husband and 40% to the wife. This meant that the husband was required to pay the wife an amount of $691,200.
The husband appealed the judge’s decision, arguing that the split was outside the acceptable range having regard to the short period of cohabitation and the overwhelming financial contributions he had made. He argued that the wife had not established why she ought to receive a 40% split of the assets and the trial judge made an error in awarding her 40% of the assets. The result at the trial was disproportionate to the facts of the case.
At the appeal, the court held, “where there is a short marriage, where there are no children and where the parties’ contributions to their assets and to the welfare of the family from the commencement of the relationship to the time of the hearing is equal, any disparity in initial financial contributions is of critical importance in determining the overall contributions of the parties” (paragraph 181).
This case demonstrates the importance of identifying the assets each party brought into the relationship especially in short relationships.
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