A live-in relationship is a relationship between two persons, who live together in the same house but are not legally or formally married to each other. In today’s world, it is no longer an unusual scenario for couples to choose to cohabit without getting married.
In South Australia and Victoria, living in a de facto relationship can have some legal consequences. In both states, only married people or couples in a registered relationship can access certain benefits provided by law. This includes medical insurance paid for by the state government and workers’ compensation entitlements if one of the partners was injured while working. Living in a de facto relationship does not make you eligible for these benefits unless you register your relationship. A live-in relationship does not constitute a legal marriage but it can be considered a social relationship.
The meaning of ‘cohabitation’ will be determined by the court on a case-to-case basis with regard to its duration, continuity, and regularity. The cases where the courts have held up a live-in relation as marriage are:
In another case it was observed that:- “In Australia, cohabitation is now seen as sufficient foundation for a marriage.”
Most couples who choose to enter into a de facto relationship do so for economic reasons, including financial benefits such as workers’ compensation, life insurance, and superannuation. In some cases, there is also an emotional which includes people living together because they are unable to marry due to age or sexual orientation.
In South Australia, a man and woman who have lived together continuously for at least three years are deemed as being in a de facto relationship. If the couple has children together they are automatically considered ‘couple’ without having to prove that they have resided with each other for 3 years.
A person is entitled to receive property settlement if his/her partner dies if he/she was living with their partner on the day of death unless there were serious reasons why not be able to live together, provided that the deceased maintained his/her partner financially or contributed towards household expenses or owned joint assets with him/her. A same-sex couple can also avail property division rights upon the death of his/her partner.
The following rules apply within South Australia::-
1) If a woman is pregnant, she can enter into a contract for the sale of land which is her home, and still retain title to that property. She also has an automatic entitlement to half the value of that property if there were no written agreement between them about it. But if both parties agreed in writing before the child was born about how it will be owned, then she would have no right after birth even if he contributed towards household expenses or paid for renovation, etc.
2) In the case where a man contributed towards household expenses or paid for renovations to I previous house, his former wife can claim 1/3rd share in any increase in value.
3) If the couple has an agreement about how their assets will be treated in the event of death/divorce, then it would override any entitlement under Family Law Act 1975 (Cth). This is not the case for married couples because Marriage Act 1961 (Cth) provides that anything said between spouses during the marriage is admissible in court.
4) The courts can appoint a receiver to manage jointly-owned real estate if necessary.
5) A contract for the sale of land cannot be enforceable unless both parties sign it.
6) Neither party can sell or give away shares, securities, etc. without the consent of others otherwise there are consequences for doing so e.g. violation of fiduciary obligations or misrepresentation to the co-owner.
7) If there is a loan for real estate and the benefit of that loan goes to one party, then another party can claim entitlement if it can be proved that he/she made contributions towards household expenses or renovations.
8) The court may order either party to keep the house in repair if it still belongs to both of them.
9) A partner who does not own land cannot enter into a contract unless they obtain consent from their partner first via the power of attorney even though any contract would only bind him/herself personally and his share will remain unaffected by the agreement.
10) In a de facto relationship, cohabitation since at least three years before death creates a presumption that property left by the deceased would be left to surviving party even if there is a will.
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