how to protect claims to property by a defacto

[motivated 5555]

Has anyone actually lived defacto and investigated ways to protect themselves from a partner ever laying claim to their property.
This is a relationship with no common children both have finished raising their own kids.
I've been told one has to set it up properly from the beginning to protect ones property
eg make the partner pay rent by lease
and not pay any furniture or repairs or car repairs or bills unless their lease includes that. Anything that could entitle them to , ,making claims on thei home or on their property.
I thought if the home/car was fully paid in one persons name then noone can lay claim to it.

Can people tell me more about all this please.

 

[mystery]

Has anyone actually lived defacto and investigated ways to protect themselves from a partner ever laying claim to their property.
This is a relationship with no common children both have finished raising their own kids.
I've been told one has to set it up properly from the beginning to protect ones property
eg make the partner pay rent by lease
and not pay any furniture or repairs or car repairs or bills unless their lease includes that. Anything that could entitle them to , ,making claims on thei home or on their property.
I thought if the home/car was fully paid in one persons name then noone can lay claim to it.

Can people tell me more about all this please.

You will probably get advice from well meaning people here, but if it was me ... I'd be sitting in front of a lawyer and getting expert advice. Many of the legal firms now offer the first consultation free.

Good luck

Mystery

 

[Propertunity]

See a lawyer and do a pre-nup. Nothing else works AFAIK.

 

[Sunfish]

This is just sooo common today. No 1 son (divorced, childless) is in a long distance relationship. He has taken out a lease on an apartment next to hers for when he is town. Suits me. I don't have to specifically write her out of my will.

Not my old-fashioned definition of "love" though.

Edit: This is on her insistence. She is protecting her inheritance.

 

[Fourex]

Another vote for consult a lawyer.

A family member just purchased a house and wanted their girlfriend to live with them but also wanted to protect the house incase they broke up in the future.

Had a lawyer draw up paperwork for them to sign basically saying what they walk in with they walk out with. They did not have to sign the paperwork but moving in was not an option unless it was signed.

It is not for everyone but in this case for a few hundred dollars they now know where each other stands.

Cheers,

Fourex.

 

[65fbk]

See a lawyer and do a pre-nup. Nothing else works AFAIK.

Yep.. Read up on section 90B of the Australian Family Law Act.
It's available via google search.

 

[Sheryn]

See a lawyer and do a pre-nup. Nothing else works AFAIK.

The lawyers call it a personal financial binding agreement, basically each person visits their own lawyer and makes a list of what they own etc.

An if you put the slant on agreement by saying "I want to protect you from my property debts" so that you are not responsible in case I get sick etc rather than pre-nup.

We tried to get our daughter to draw up agreement but she wouldn't.


Regards
Sheryn

 

[RumpledElf]

Heh. My partner, since meeting me, has gone from owning nothing but the clothes on his back to having a half share in ~2 houses, 2 children (although I swear one is just a clone of him), 1 cat and a very healthy bank balance. The car is still in my name only but that is getting old and tatty and next thing you know we'll have a joint car too.

Way too late for prenups now.

You don't have to cohabit or have children to get property claims either btw, Australia has some quite interesting family laws. A man's long term mistress can lay claim to his stuff at the end of an affair, for example. Short answer, see a lawyer and get something signed in blood.

 

[Perp]

I don't have to specifically write her out of my will.

It wouldn't matter what you wrote in your will, unless you establish a bloodline trust. But if you leave stuff to your son, it becomes marital property; you can't specify that it's to be excluded from marital property. (Well, you could, but it wouldn't have any effect.)

Sorry if I misunderstood what you were suggesting, and have inadvertently told you to suck eggs.

I've been told one has to set it up properly from the beginning to protect ones property
eg make the partner pay rent by lease
and not pay any furniture or repairs or car repairs or bills unless their lease includes that. Anything that could entitle them to , ,making claims on thei home or on their property.
I thought if the home/car was fully paid in one persons name then noone can lay claim to it.

Whilst all the things you've mentioned may be taken into consideration (eg paying rent, not mixing funds, and what each party brought to the relationship), the last statement is incorrect. The court can infer that you're in a de facto relationship even in the absence of any mixed funds or joint purchases, and once that relationship is deemed to exist, everything you own becomes marital property (in the absence of any BFAs or other factors, eg bloodline trusts). 'All property of the parties is considered “marital property” despite whether a particular asset is owned solely in one party’s name or was owned by them prior to marriage.' See also this link.

As others have said, if you own anything of significance, you need to prepare and execute a binding financial agreement.

 

[wylie]

It wouldn't matter what you wrote in your will, unless you establish a bloodline trust. But if you leave stuff to your son, it becomes marital property; you can't specify that it's to be excluded from marital property. (Well, you could, but it wouldn't have any effect.)

Even a trust specifically aimed at protecting assets for the bloodline doesn't appear to be watertight, in my experience.

It seems the family law court has power to overrule the best laid plans and schemes and can unwind things, and award assets that were clearly being protected from the very scenario unfolding.

And I have read of a case where a wife successfully won half of the million dollar inheritance due to come to her soon to be ex-husband, and his parents were still alive. He had not inherited anything, but she got half of what he would inherit "sometime" and she got it "now".

I just don't know how "watertight" things can be made. Certainly not in our experience.

 

[goonandtell]

i dont think its possible to full protect yourself but when i broke up with my partner we ended up getting a binding finacial agreement drawn up to do the split.

The understanding is.
It doesn't matter what you do they can sue you if they want, any trust, binding finacials, prenups, etc... are taken into account at the trial/mediation/etc....
The 50:50 thing is a myth, if you can prove you entered with more, and contributed more during the relationship you can get that back.
Even though i have a BFA stating the split of assests i can still be sued, it would be a bloody hard case for them but if they could prove certain aspects where not visible at the time (e.g. i was about to get a change in fin circumstances) it can be reopened.

My advise is keep it above board as it gives you the best fighting chance, if she contributes to living cost, get her to send them to you weekly/fortnightly and marked as such e.g. Living cost & utils rather than "love you lol".

Personally I rent with my partner everything is 50:50 and goes through a joint account, our investments are all divided via clearly labeled units in a unit trust. Its not fool proof but short of living in a dark cave by yourself nothing is.

 

[kathryn d]

This is why I believe people should not be rushing into relationships and start living together.
If they love you enough to live with you, they should love you enough to marry you.
I'm certainly not a prude or old fashioned...I just like these types of contracts better.

People are less likely to walk away from a marriage, than a couple is just living together.

 

[Bon]

Stay single and build up a relationship with your local prostitute. Saves you time, money, effort & stress, not to mention definitely MUCH cheaper in the long run.

 

[JamesGG]

Has anyone actually lived defacto and investigated ways to protect themselves from a partner ever laying claim to their property.

I've often said before that the romantic in me does not like the idea of prenups and such things. And every time, there's a question in the back of my mind about how I might think, and whether that opinion might change, when the cards are actually on the table and I've got a larger stack of chips at stake. Easy call to make when I was single!

That said; Sam and I got engaged recently, and she's been living here for about six months now (give or take a little). Cards are well and truly on the table now and even so, nothing has changed. I trust her.

All or nothing. Early days yet; but so far, so good.

 

[kathryn d]

I've been married twice.
The first time entered with nothing,same as my partner.
The second time entered with the same amount as my partner.

So, in our circumstance no prenup was warranted.
Rob knows I am a fair person.I only wanted half from my first marriage. No lawyers involved.

 

[skater]

I trust her.

All or nothing. Early days yet; but so far, so good.

James has hit the nail on the head here.

I don't know why anyone would want to co-habitate with someone they did not trust.

If planning a marriage, you need to look at both partners. Do you both love each other? Do you both trust each other? Do you both believe that marriage is for life? Are you both committed to working together to make your new family situation work?

If the answer is yes, then do you really need to protect your assets?

If the answer is no, why would you want to live together in the first place?

 

[Perp]

This is why I believe people should not be rushing into relationships and start living together.

kathryn_d, a second thing that we agree on! Who'd've thunk it?

Like you, I don't think that "living together" is wise before deciding whether you're in a committed relationship; it seems to be the norm now that when you get a boyfriend/girlfriend, you just naturally will live together.

The biggest negative, in my view, is that it prevents people having to make a conscious decision. If you're madly in love and not living together, it brings the situation to a head - you have to decide to make a commitment and live together.

If you just live with somebody who you're half-hearted about, the temptation is to just amble along through life, not particularly enamoured with the person you're co-habiting with, but can't be bothered changing the status quo. You've made a "half commitment", and there's insufficient motivation to either go the whole hog and make a commitment, or to break up. I think that many "de facto" couples, if they had to make a firm commitment (ie marry or break up), would break up - and probably be happier, either on their own, or by finding somebody to whom they could make a full commitment.

If you are really great together, co-habiting can give a commitment-phobic partner an excuse to not have to commit, which can leave the other partner (if not a commitment-phobe) "settling" for co-habitation when they really want to be married.

Decide whether you're a committed couple *before* you live together, and there's a much greater chance that you're headed for long-term happiness.

I don't know why anyone would want to co-habitate with someone they did not trust.

I used to feel the same way. But... I do see, with the benefit of life experience, that even the nicest person can become completely unreasonable in a divorce, and that even with the best intentions in the world to "be together forever", life can take unexpected turns and any one of us may find themselves in an unanticipated divorce. (Though avoidable divorces still make up the vast majority, I'd agree.)

So I don't see a plan for a BFA being about distrusting the other party, but about "planning for the worst", much as we have insurance. Particularly where there is a great disparity between assets going in to the relationship, or where children from prior relationships are involved, I think it's wise to address the issue up-front - then hope you never need it.

 

[Sunfish]

It wouldn't matter what you wrote in your will, ....... Sorry if I misunderstood what you were suggesting, and have inadvertently told you to suck eggs.

No worries Perp. I was being flippant. Unless he got involved with a total dragon, it is his business not mine.

I do see, with the benefit of life experience, that even the nicest person can become completely unreasonable in a divorce,

Hence the common lament from men: "I never knew I hated my wife till I got the first letter from her lawyer."

 

[our obsession]

Being a researcher by nature, I did my due diligence all prior to relationship beginning. That is just my nature, not inclined to share body fluids, children, houses, life, 'any/everything' if I have not scrutinised the 'other' in my life.

We entered into our relationship with equal financial standing by coincidence, but shared core values, some interests, and had a very strong (physical/intimate) attraction to each other which is very pleasant... But that would never have got off the ground if we had not of 'each' ticked the required/scrutinised boxes of assessment each of us has in our minds..

The only solicitor we consult is for will arrangements, and for some conveyancing.

We contribute to our relationship (on many different levels), but specifically in re/ to financial differently, but neither more or less by each.

He does his thing, I do the wealth/asset building. Together it is a team, we have never seen ourselves as anything less. Personal relationship notwithstanding and/or failing we are still a financial wealth/asset building team. I don't know how that could apply to the next couple? It's something each and everyone of us needs to figure ourself? I guess. what I do, or my given partner at any given time does is not the person next door.

Marriage, smarriage. Shacking is cracking fun.

 

[our obsession]

Kind of sounds rather unromantic, but I am not a romantic kind, takes all kinds I guess.

As well as scrutineering, I use gut instinct too. He passed that also, as well as his family. Whom I adore...I have been very fortunate, but also diligent.