Living Apart Together: is it an effective form of asset protection on relationship breakdown?

ABSTRACT

Studies in Britain and Australia show that Living Apart Together (LAT) is a significant modern-day relationship form, accounting for 9–10% of the single adult population. For many people in LAT relationships, how their property will be divided at the end of a relationship is an important consideration; one which they would like to influence. While the general perception of those LAT is that they are free from the reach of family law when it comes to dividing assets at the end of their relationship, the situation is less clear cut from a legal position. There is a complex mix of factors to be considered when deciding whether a LAT relationship has crossed the line to become a de facto relationship with potential financial consequences. This article draws on case studies from two Australian LAT studies to provide a timely discussion of the potential financial implications for those LAT.

KEYWORDS:

• Living Apart Together
• family law
• financial provisions
• assets
• de facto relationship

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes

1 In Australia, broadly speaking, the words ‘de facto relationship’ are used to describe a marriage-like, cohabitation relationship.

2 Legislation in a number of Australian states and territories makes it possible for partners who fall outside the traditional ‘cohabitation model’ of marriage and de facto relationships, but who have nonetheless enjoyed a close and caring personal relationship to apply for orders for property division and maintenance set out in the appropriate Act: Domestic Relationships Act 1994 (ACT); Property (Relationships) Act 1984 (NSW); Domestic Partners Property Act 1996 (SA); Relationships Act 2003 (Tas) Relationships Act 2008 (Vic). This legislation aims to provide financial protection to a person who lives with someone for whom they provide care and domestic support on an unpaid basis. This legislation is directed to people who are in personal relationships that are not intimate couple relationships to which the federal de facto and marriage laws apply. This article does not examine the potential for people who are LAT to bring proceedings within the terms of this legislation.

3 In Western Australia, family law property proceedings for parties to de facto relationships are provided for in identical terms to the Federal Act under state legislation: see Family Court Act 1997 (WA) s205ZG.