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Breaking up is hard - especially for moderns

Sun Herald

Sunday March 27, 2011

Sarah Whyte

IF A woman is having an affair with a married man, is she in a de facto relationship and entitled to claim his assets if they break up?Potentially yes, says family lawyer Elizabeth Rusiti, who is working on a case involving a Sydney woman."De facto relationships are now a legal minefield," Ms Rusiti, from law firm Armstrong Legal, said.She believes the woman has a reasonable chance of winning. Her lover lives overseas and they had spent up to nine months a year together, three of those living in Sydney. Ms Rusiti said the couple had been together more than two years. They owned a Sydney property, which Ms Rusiti said would increase her client's "success rate". She said cases like this were were "increasing", but were still uncommon.Following changes to the Family Law Act, which came into effect in March 2009, de facto couples who have been living together for at least two years are treated in the Family Court and Federal Magistrates Court in the same ways as a married couple. The change also applies to same-sex couples.But what defines a de facto relationship is creating an enormous amount of conflict since changes to the law in late 2008, a law professor from the University of Sydney, Patrick Parkinson, said."The boundaries of the de facto relationship are expanding," he said."We are coming across cases where the couple have not actually lived together full-time for two years, and one of them has a home elsewhere, but the courts have said this can constitute a de facto relationship," he said. "There is no doubt that the definition is wide enough to include a case where a man stays overnight with his mistress for parts of the week over a period of two or more years."Like married couples, de facto couples are able to obtain property settlements, split superannuation interests and make financial agreements, all recognised and enforceable by the federal family law courts.Professor Parkinson said he was seeing more "unusual patterns of how people relate", the majority of whom were reasonably young.Love rulesWhat could determine whether a relationship is considered de facto:Living together for more than two years.Being in a sexual relationship.Staying many or most nights and having substantial belongings more than just a toothbrush at each other's homes.Joint ownership of property, joint bank accounts.Relying on each other for financial support, paying bills for the other person.Joint children and/or sharing the care of children.Referring to the other person as your "partner" rather than your "girlfriend" or "boyfriend".Entertaining together as a couple, especially at home; holidaying together.Telling friends and family about the relationship.Source: Family lawyer Elizabeth Rusiti

© 2011 Sun Herald

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