Short Relationships

Happens, the Divorce Down Under podcast where we talk about everything and everything family law related. Another episode of Split Happens, the Divorce Down Under podcast, with me, Alex, and my colleague and friend Liza. Morning Liza. Morning, Alex.

Today we're going to start off by talking about short relationships in family law. So over to you. Well, short relationships, what is that exactly? Is that Is it a two year relationship? Is it a five year relationship? What do you think, Alex? Well I'd say that anything under five years is a short relationship. Yeah, you're probably right. even getting up to six years and things like that, you might be getting into that territory of it being Still fairly short in the scheme of things.

Yeah. What's the importance of whether it is a short, medium or long term relationship when we're talking about family law? Well it's all to do with your contributions that you make. I think I've skipped ahead. But anyway, we're gonna deal with contributions a bit later in this in this episode. Back to contributions. But what we wanted to talk about is when you're trying to divide up money.

the property that you've got with your ex partner. But it's an ex partner of a limited duration. So it's somebody that you've only been together with for two to five, maybe six years. Those sort of short relationships. How does the court treat those any differently to somebody who's say been together with a partner for a few decades? Well, the partner from a few decades has a lot of time to make a lot of um effort put a lot of financial effort into the relationship. So

realistically you've got um they've got to look a lot more carefully at what each party has done during that time. What whether they've one party sat on their hands and had um a really good time along the way or is it that they've both chipped in and made a good go of it? That's really what the court's looking at.

Okay, so when we're talking about the courts looking at those sorts of things, that's from a way of um kind of from a a place of trying to weigh up the importance of everybody's contributions. So that's about the money that they brought into the relationship and getting that money back? It is. It's it's not just the money, but there are other types of contributions. But the most part in sp in short relationships you're dealing with money. Okay.

ac mae'n ymwneud â llawer o bethau. Mae'n llawer o bethau, mae'n llawer o bethau, mae'n llawer o bethau, mae'n llawer o bethau. It means all their assets, all their bits and pieces that are lying around the house, um, there's some valuable artworks that might be Um, up for grabs. It might it's anything that they own.

But so how does that work then? With a short relationship, if you if you're together with somebody for just a couple or three or four years and then you go your separate ways, nobody's fault, it just didn't work out. W why would that person have a claim on your property? Or would they? Well, it depends really on what they brought in. Um At the end of the day, the court has to make an or will only make an order that's going to be just and equitable. So we spoke about that last week.

about these four steps of um working out whether or not there's really a need to alter the property interests of the parties. And Um, when you're looking at whether or not a court is going to adjust the interests of a of parties to a short relationship, they you've still got to look at whether or not it's going to be a just and equitable um division at the end of the day.

And if it's you know, if one person comes into the relationship with say, um, with a million dollar unit, unencumbered, um, a couple of cars, a heap of super and the other party's there for a couple of years and hasn't really done too much. Well, is it really fair for that other party to receive half their assets just for their Um for them being in that relationship for such a small amount of time. That's what the court's gonna look at.

Yeah. I suppose the perspective of each of the parties is going to be very different about that. Um you you mentioned a couple of years then. So short relationships where the court might be prepared to make a property division that's just and equitable. Is there a period of time that's too short?

Well, usually anything that's under two years is going to be too short um unless there's a child involved. If there's a child then you may be still entitled to something. But that won't be on a contributions basis. That's usually more from a future needs perspective. And we were talking about that last week. Um when it came to um the things like whether someone has the care and responsibility of a child under eighteen.

So parties will need to um assess whether or not that that there is a child that is going to um I wouldn't say be a problem for them financially, but as we both know, you've got kids, I've got kids. Children are problems financially. So the more um likely result is that if there are children to the relationship then the duration of the relationship isn't going to be as much of a question for the court as to whether or not still an appropriate um reason to divide yeah. Sorry, but Interesting.

Much less about what people have chipped in financially and more about looking into the future. So there's a a certain amount of crystal ball gazing that needs to go on while working out a short relationship, even a very short relationship, whether as a child or children, because you've got to work out what those parenting arrangements are gonna look like and how that could impact upon both you know both parents.

And that's right. And that's that's where you actually get a lot of people um trying to play you know, they'll use their children as a as a bargaining chip um to try and score a a higher amount um on a property settlement. But in terms of um going going with the the short relationship um of say two years, you'd be hard pressed to get any real property adjustment uh assuming there was no kit. um above and beyond what you actually put in to the relationship.

So like a restitutional approach, if I use that ghastly words from from contract law, where you put people back to where they started as much as you can. Yeah, I think um I I think though that there are lot of um ulterior motives. I don't know about you, but some of the most interesting cases and the most difficult cases that we we find are short relationship cases. Um, and that's because there's a lot of emotion and it's usually ended pretty quickly.

by one party who doesn't want the relationship to be over'cause it's only just begun, um and there's a lot of bitterness that's involved. Um, what do you think, Alex? What do you what Do you think? Those yeah, those short relationship cases where there is a child involved are difficult matters because

Necessarily it's a short relationship, so it's a very young child. Which means that these people who have separated sometimes in very quick and acrimonious circumstances, they find themselves you know kind of warring with one another and really angry at the breakup. And then the dawning reality of having to parent together for another sixteen, seventeen years or something like that.

Then you've got to build into that one person's needing money to be able to continue looking after the child and they might not be the person that brought any money into the relationship. So the other the other parent might feel aggrieved. They are a very difficult case.

Um, and you can't really put t them all together. You have to deal with everything on their own nuances. So, you know, even though the facts might seem similar from case to case You look through the cases and you know the ones that you've dealt with yourself.

What's best for one couple is going to be very different to another. Somebody might need a a you know a period of time where they need some spousal maintenance to get themselves back on their feet if they haven't worked for a little while. They might have had a dynamic in their relationship whereby one parent does All of the work for the child and they're going to continue doing that. They're going to need some further funds out of the property settlement.

And just to be clear, so spousal maintenance, that's um an option for people even if they have had a short relationship? It can be an option. I think it's a little less likely that you're going to persuade a judge

um or a court that it's appropriate to make an order of spousal maintenance. But it depends you it's a two pronged test for spousal maintenance. It's do I need it and can you afford it? That's a very simplif simplified version of how the courts approach it, but that's it in its essence.

So the fact that it's a short relationship wouldn't automatically preclude spousal maintenance, but it would make it I think fundamentally more unlikely because a person hasn't put their career on hold for a decade or two decades or So they don't they ought not to reestablish themselves. They ought not to need those training.

And so when we're talking about short relationships Um one of the things that I find quite challenging, um, because as we know, lawyers aren't really a mathematical mind and is It's often a very strict mathematical exercise in a way of going through those bank statements and keeping all those records for parties and and assessing the actual breakdown of who paid for what. Because in a lot of those cases where you have um parties that have been together for, say, twenty

you're unlikely to have to go through that exercise of who paid for these groceries and who paid for what. How do you find um going through that process? Dealing with shorter relationships. relationship. Well shorter relationships uh w w we live in this current age when you can get a lot of information fairly simply compared to you know rolling ourselves back we're both long in the tooth to remember like twenty years ago and having to get paper bank statements and things like that.

These days it's relatively straightforward to be able to contact your financial institutions and get copies of your statements going back a few years. electronically and those can be swapped about. So it's easier to get the information, but people are often very reluctant to deliver it. We we're getting into another area here, disclosure, which we'll probably talk about s as a whole other topic one day. Um but that's the

obligation you've each got to give each other your full and frank financial details, what your circumstances are. That can mean some crawling over bank statements and certainly with a short relationship, it is possible

Not always desirable, but it's more possible to do a forensic breakdown as to almost exactly what you came into the relationship with, what you spent during that relationship, what you earned during that relationship, and any other gifts and things that you got, and then where you finished at the end of it. You can look at, you know, both parties' situations like that and it's easier to find that information and to go through that process.

with short relationships. You're quite right. A twenty year or long relationship It it merges, it mingles and I don't think many people keep their records going back that long. Uh and I don't think it'd be very desirable to do that anyway. Mae llawer yn ymwneud â phobl sy'n ymwneud â phobl sy'n ymwneud â phobl sy'n ymwneud â phobl sy'n ymwneud â phobl.

There you know, there was a case on the Gold Coast a few years ago of a same sex couple who kept their finances entirely different from one another and had very different investment sort of patterns and habits and and financial futures planned. When the court was asked to intercede and make a an an an adjustment order, it declined. It said, No, no, no, these people have kept their finances separate for years. Why would we interfere?

So it yeah, again, everything falls on its own facts. It's a it's a very nuanced area of law in terms of the length of the relationship. It's absolutely a factor you've got to think about when you you know you're assessing a matter with a client.

But it's not going to be determinative. It could be a three year relationship when everybody's thrown everything in together at the very start, bought houses, invested in businesses and you know, the financial fortunes, you know, they they flounder or they or they charge on together. And you have to deconstruct that for what it is.

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And so when we're talking about these short relationships in the court system, um there's been a lot of talk lately about um cases being kicked down the line as having uh less a priority. Um what has been your experience lately in terms of getting the court's attention, particularly when we're dealing with a short relationship in a property Uh well

The courts are highly pressured. I'm not gonna say anything at first about the courts. The the judges and the people that work in the court system The smartest thing you've said all day. It's the only smart thing I'll say all day. Um they are under colossal amounts of pressure and there are there's pressures on their time, there's pressures on their resources.

Now naturally there will be uh some form of prioritisation of difficult cases and frankly the most difficult cases are the ones dealing with children, children who are at risk, for example. So those cases will be dealt with as a priority. that will mean that financial cases without elements of great urgency to them when people are just getting on and living their ordinary lives.

They are not going to be as prioritized as something dealing with young children. That's just the fat or that's just the matter of the fact that the The issues I suppose that I'm experiencing are about getting parties to a settlement process fairly early on.

Now, you know and I know that we work in an environment where the courts and all the rules uh and practicality tells you you've got to do your level best to settle these cases before they get to court. But if they do get into a court process, maybe it's to save a a limitation period or something like that. But Those cases will be referred to some form of dispute resolution process. Now it might be a private media.

Or it might be a court family dispute resolution event like a conciliation conference, which is just a you know an old fashioned expression, just meaning it's kind of a court led mediation. That'll happen sooner rather than later. And it's always a good idea before you get to even that stage to have swapped off us about. Because if you find that you're pretty close,

I'll be advi I'll be advising my client to compromise. Yeah, w you got you don't spend twenty thousand dollars to chase down a difference of twenty thousand dollars. It it makes no sense at all. Right. And the the other thing too, um I think parties have to remember is that we're dealing usually with a finite amount up for ground It's a short relationship so you can only really look at it

for those periods of of time when the parties were together in that relationship. So it's not like there's a chance there for them to try and make up a bit of ground on on the non financial side of things or um some other issues in terms of um you know violence, those domestic violence matters whereby you can you you can argue that

Oh well this I'm not able to earn as much money now because he beat me up the entire time of this relationship. Those sorts of arguments aren't necessarily going to um succeed. And so when you are getting Getting to a mediation. you know that you're dealing with such a short period of time, there really isn't any wiggle room. The documents will speak for themselves and it will probably come down to a a fairly strict black and white m um percentage split as to who contributed what.

And putting a figure on the future needs for each party if there are the children involved. Um, will be a very difficult exercise, but there needs to be that common sense commercial el element. Because you're going to spend a lot more money fighting something that for a f there's gonna be a finite amount that's to be divided.

Well, you mentioned something really important then, which is about working out the future needs of the parties. We were talking about that a little bit earlier, and the element that that's unknown at that point as to who's caring for the children for the next, you know, decade, decade and a half, possibly longer. Would you

Usually uh a good idea to sort out the parenting before the property or do you do the property before the parenting in a short relationship? Okay. Because if I'm acting for if I'm acting for the person who um to increase their um share of the property. and they're more than likely to receive to have those kids, um, then I would most likely do the parenting first and lock that deal away and then I can argue need the uh further adjustment.

You can rely upon that settled deal for the children because you're going to be the primary carer for them for X number of years, or or the have the majority care for them, so you will have a greater need for property. But I've had plenty of cases where I've been on the other side of that and where I've been for the party who may not be the one who's going to end up with the kids most of the time. But you still there's still that argument there that they

Yeah. So you have that threat of it hanging over their over the other party's head that that's what's gonna happen and So you you lock them into the property side of thing first, that they haven't taken that future need. There's that there's that question mark, Oh, you may not get the kids, so you m better just agree on a lesser amount for your future need. And once that happens you can lock them away on the property side of things.

And then they may end up with the kids anyway. So you've at least saved yourself saved your client, I should say, um, a bit of bit of money. Yeah, well, I don't know about you but when we talk about mediations and doing those at a relatively early stage. I find it quite difficult to run those mediations or to participate for my clients.

where it deals with both property and parenting at the on the same day. It's very hard to put the focus on one thing over the other. And you normally find well I I my experience is usually that only one of those issues will get resolved and then you come back and do the other thing another day.

So you'll find out very quickly where your client's clients' interests lie, where the people actually well, things they actually care about. Are they worried about the time with the children and what arrangements they want to put in place for the children? Or are they really worried about getting the finances sorted out first so that they know where they stand before they commit to a parenting race?

Well that's that's when we usually d um are able to determine where our client really stands and what our client's real interests are because that's when they'll show their hands to us is to say, Oh no, we'll just hold off on the We'll hold off on the parenting just yet, but we'll just try and lock away some some property orders or something along those lines. And that's Fine.

to each their own. But when we're talking about intermingling between the the property and the children, um my mind when you when you when someone talks about intermingling with property matters I think of intermingling with another party. I d I I have a very different perspective on that, but yeah. But yours is more of a human thing. Yeah, well yeah, well my my first thought was oh are we talking about mistresses or are we talking about um no we're talking about children but if there

I was thinking shared bank accounts and stuff like that. Intermingling where you you you you're both making financial decisions together.

Well I was also thinking though that and it's it's a valid point because often in short relationships There has been an overlap between um relationship number one and relationship number.

number two. Sometimes it could even move on to relationship number three. But there that makes it even more complicated because you're dealing with short relationships, um, particularly where you've got the finances and the financial position of party number one or party number three that has to also be taken into account.

That gets even more complex when we have other people involved in the relationship, not just a mistress sometimes or a I I shouldn't have said mistress, that's really sexist, but you know Point taken. Boy, external boyfriends and girlfriends outside of that relationship. Um and then you've also got questions around if there are other children that the parties might have, because we we talk about a a a short relationship and I think it's easy to sort of

think in terms of oh we're only talking about young people here, but we're not. I mean w we live in a in a world where people enter into and exit relationships at all different times in their lives. So they might be middle aged, they could be more senior citizens. Well how many husbands is it? Joan Collins? She had a few, didn't she? No, and I don't think she s had all her husbands right at the start of early in her earlier years.

She's had um plenty throughout. It's just I think it's just a fact of life. And I think that particularly now where's where there's this attitude of get the kids out, now it's time to live. a lot more people uh like older generation people are having um just getting out there, living life having a good time, um, ending up in these relationships and these do go sour, just as any other relationship will.

And then sometimes you'll have you know, with as you say, the more mature p couples that get together at a later stage in life, then there's every chance that there are adult children and even, you know, grandchildren that are are kicking about who have got a bit of a vested interest in, you know, their mum or dad not giving away You know, the the family you know, the family fortune to the the new squeeze.

I do I actually get quite a lot of inquiries about um older and I I politely call them older um who are starting relationships who are wanting to protect themselves and protect their assets, particularly for the sake of their children and grandchildren, by having a binding financial agreement also known as a prenup.

And that is such a common thing these days because they don't know how long this relationship's going to last. And there's a there's a bit of a Um You know, if someone if they pass away or something like that, then it's all gonna go to the the new flame and the succession rules don't particularly care too much as to how long the new flame has been hanging around for.

No, no. I mean we won't get into the succession act and and the joys there, but the you know, you mentioned the financial agreement and the prenup. This is the This is a document then that's intended to say, look, let's hope it's let's hope we stay together forever, but if it doesn't work out, this is the stuff I'm gonna keep, this is the stuff you're gonna do.

It can. You just need to work out what you're going to do in the event that you separate. And it's a very simple, straightforward agreement. You both have to disclose what you've got though. There's no point um going to all the trouble and expense of having a lawyer draw up um documents and you know, hiding a few bank accounts here and there or a few assets because if it turns out that you have been hiding these things, then you're going that whole agreement

that money that you've spent has just been thrown down the down the drain and you are um that agreement's liable to be set aside. And so they're you're open to having it all divided up anyway. And the timing of that agreement then, we I mean we're talking about short relationships and so It might be appropriate for somebody I mean it can be a difficult conversation to have, you know, you know, to your you know, your your new partner. Yes, just sign this before w before you bring your toothbrush.

Yeah, that's right. And and there lies the land of litigation. But um so it might be appropriate for somebody if they are say, you know, in that the second generation or third generation of relationships and there's property that they want to protect for the sake of their their their family from So it might be about jumping in, what sort of time should they be doing those financial agreements?

I would I would think as soon as as soon as possible, as soon as they feel comfortable, they're gonna it's a it's a I guess they do. If they've bought a h well, ideally before they've um put you you would have thought that people would have had a bit of a chat about what's to happen, a bit of succession planning slash um family law planning if you can call it that. Um before parties buy property, but most people

But the heart wants what it wants, doesn't it? You know? You we we do these things because it's gonna last forever, right up until that moment when it doesn't. That's right. The timing, I think it all has to be on a case by case. I would always say the sooner the better, but it's a two way th street. So you can't just have it's not just one party demands it and therefore it's it's going to be ineffective.

Both parties have to agree to it. So If you're not going to be comfortable talking about it with that other party That's gone. That's not gonna be something you can do, is it? That's right. To choose then between the relationship and the agreement'cause you can't have both by the same. No, you can't eat your carrot cake. What is it? Have your carrot have your cake and eat it too? You can't have your carrot cake and eat it. That's right.

Okay, all right. So short relationships we we've talked that they are probably five years and less. Sometimes they could be six, sometimes seven. It very much depends upon how that relationship's gone. I know there's cases that the courts have looked at where, for example,

a couple have been together notionally, they get together, they move in together, but then one of them might work away or go overseas for a period of time in that relationship. And that can have a the effect of turning, you know, what could almost have been considered to be a medium relations. Or a short to medium into back into a short term because the contributions issues again and the and the co-mingling don't work quite so well if people are absent from.

Right. And and when you're dealing with particularly de facto couples as opposed to it being a married although we've spoken about use the word relationship, we do mean to include marriages. But when you're talking about a short de facto relationship. Um and when you've got parties that may be working overseas, for example, they're flying in, flying out, they're come and go, they've got separate finances. It's very difficult to prove.

You may technically be together um for eight or nine years, but because of what it looks like on paper Well, it may work out that you've only been together for three or four years and particularly the party who holds all the assets, they're gonna be the one who says No no no. It was only a three or four year relationship. We weren't together for Yeah. We separated we went our separate ways after that. It's to prove it.

Mm lots of squabbles about when a relationship began, when a relationship ended. Uh and figuring out those dates can can be disproportionately important I think in some people's minds. Judges in my experience don't tend to get h hung up too much on the month of the year, but it's more about the year, you know, because you know if it's yn ymwneudol yn ymwneudol yn ymwneudol yn ymwneudol yn ymwneudol.

It can be a protracted separation that occurs through a series of mini leavings almost and then But if that happens over a number of years, as you were just talking about there, that gets to be quite quite complex in working out how long this relationship is, how much uh weight we should put on their contribution. Especially the non financial because they are the ones that don't have a bank statement to say X dollars hit on that day and and Y dollars went out.

Yeah. So all right, if you're in a short relationship and you think it might be coming to an end, what do you do? Do you know do you want to know my honest answer or the the l the legalish answer? Well let's stick let's start with the honest answer because it's unusual to hear that from a lawyer. Well you probably s what is it? Swipe left. Oh Gott, I don't know, I'm far too old for those kinds of things.

That's that would be no. Look, if you think it's going to come to an end, um I'd probably start gathering my documents. Um, I'd start getting access to things and making sure that things are in my name, that I have control over passwords and Because that's Oh, that's really important actually, isn't it? Yeah, all your email accounts, start changing your e or just at least set up. Your bank logins and things like that.

Set up new emails so that you've got something else that you can The amount of times I see Alex and Liza at hotmail dot com. Mm. No point emailing that. No one's gonna respond to that one. But um Well can I

Email my client because it's saying it's going to him as well, or is it you know, there's that sort of issue that comes up. So get your own email address, a separate one, get your own Facebook account, um, all those sorts of things because These are things that are going to um be used as evidence if it does get messy. Yeah. A summary, I suppose, of where we stand with short relationships is that they are going to typically be five or less years, but it could be a little bit longer some.

Who gets what is almost impossible to know except on a case by case basis. Um the impact of children in that relationship could be quite significant in dealing with a financial separation. So in other words, if there are young children out of a short relationship that could have a big bearing on who gets what regardless And if you think it's coming to an end then get in touch with, you know, your lawyer, your family lawyer and and start working through you know a s a sensible strategy.

yw'n ymwneud â'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i'i you know, make sure that you speak to your your local friendly family lawyer and get some good advice early in the stay. Very sage advice.

All right, well thanks very much for listening to uh Split Happens, Divorce Down Under podcast with myself, Alex and Liza, and we'll talk to you again next time.