Family Law: 22 March 2019
You may have heard some discussion of a property settlement between a prominent Australian cricketer and his former model fiance. The circumstances set out below are based only on media reports and set out as a hypothetical, given we have little idea of the true details.
As set out in previous 'blogs (see 9 and 16 September 2009), to apply for property distribution orders under the Family Law Act a de facto couple must either:
The couple in question were said to be "togetherfrom about 8 January 2007, engaged on 25 March 2008 and separated on 12 March 2010. Interestingly, they do not appear to have been cohabiting at least until 21 August 2008. Throughout 2007 and 2008 regular reports confirmed that they did not live together, but may do so upon the cricketer completing renovations at his home. Cohabitation is not compulsory for determining if a couple are "de facto, but it is important. Other factors include dependence on the other, duration of the relationship, whether a sexual relationship exists, the care of children and public aspects of the relationship. The couple appear to have done little to combine finances. A Court may find they have not been a de facto couple for 2 years.
We assume they have not had a child together nor registered their de facto relationship. An engagement would not suffice as a registration.
Has one partner made such significant contributions to the relationship it would be unjust for a court not to make an order regarding their finances?
A recent summary suggested that the known assets of the parties were mortgaged real estate purchased for about $9.5 million, a $200,000 ring and $250,000 car. The real estate was the cricketer's property, the ring and car the model's.
The cricketer had bought a $6million property, the ring and car during the relationship, but purchased the remaining property prior to the relationship. His income was estimated at $2.5million per annum, hers $600,000. Unless there is little equity in his real estate, the cricketer appears unlikely to be seeking an order to re-arrange finances so that he gets a share of the ring or car.
If the model had made significant contributions to the relationship, whether by mortgage payments, payment of living expenses, domestic duties or otherwise, she may have a claim. Given the cricketer appears to have himself purchased the vehicle and ring for the model, she may find it difficult to obtain any order in her favour. This all begs the question as to where the model's income, estimated to be $600,000 a year, was actually spent.
If the parties had entered a de facto financial agreement properly prepared, with advice from solicitors, it would be binding even if they had not been together for 2 years. This is less common when parties are expecting to be married, because a marriage will invalidate a defacto financial agreement. With figures like these, a de facto agreement would still have made sense.