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Exposure to claims when a de factor relationship ends

How much of a connection with WA is enough to expose you to claims when a de facto relationship ends?

Where a de facto relationship ends, there is legislation in Western Australia known as the Family Court Act 1997 that allows the parties to make claims against each other for alteration of property interests and spousal maintenance.

There are various requirements that must be satisfied to be eligible to make such financial claims.

One of the requirements is that one or both of the parties must be “resident in Western Australia”.

In a Decision delivered in January 2021, the WA Court of Appeal has provided some guidance in relation to the proper interpretation of the residence requirement.[1]

In the case that the Court was considering, the parties had divided their time: spending part of the year in WA and part of the year living in another country.  In some years, the parties sent as little as 8% of the year in WA.

Despite spending such little time in WA, other connections with WA were nonetheless maintained, including:

  • Retaining Australian citizenship;
  • Not obtaining permanent resident status in the other country;
  • Remaining an Australian resident for taxation purposes.

In relation to the proper interpretation of the requirement for a party to be resident in WA, the Court said:

“…even a remote and general connection [with] the State is sufficient.

…the focus is not on the person’s residence in the sense of his or her place of occupation…

…’resident’ in this context encompasses residences of differing permanency.  It connotes a connection with Western Australia by habitation in the State, even temporarily … It imports no particular degree of permanence, although it connotes more than the mere sojourn of a visitor to or transient presence in the State.”

The Court said that relevant considerations include:

“…whether the person has retained a continuity of association with the place … together with an intention to return to that place and an attitude that that place remains ’home’”. 

On the facts in this particular case, the Court concluded that the party was a resident in WA.

Consequently, they were eligible to pursue their claims in WA against their former de facto partner.

If you are a person who is spending time in WA and if you are in a de facto relationship, then you may need to give consideration to the question of whether you have sufficient connections with the State to expose you to financial claims being made against you here.

The only effective way of protecting against such claims is to enter into a Financial Agreement.

[1] Laufer & Gear [2021] WASCA 2

William Sloan I Director I Accredited Family Law Specialist

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