Journalist NICOLE HADDOW has spent more than a decade researching personal finance. Now she was faced with a new phase of her financial life – as one half of a couple. Her book, Couple Goals, is a practical and inspiring look at what can be achieved if you’re a united team.
Here she shares her thoughts on protecting your assets when sharing finances.
Protecting assets in a de facto relationship
In a de facto relationship where one person has a property in their name and the other moves into that property, it is wise to set financial boundaries early. If the non-owner party makes regular financial payments, you may agree that the money is a rental payment. Rather than making room for uncertainty as to whether the payment is adding to the value of the property. A binding financial agreement can clearly set out and define the nature and intention of the payment. As well as any other payments or contributions made by either partner.
I took a sizable risk when Sam moved in, because he did add value to the house. Immediately. Six months into our relationship, he’d done an incredible amount of work. Plastering, painting, replacing floorboards, installing new light fittings and more. Had we split up six months in, he’d have easily been entitled to make a claim on the house. Not least because I was posting our renovation journey on social media so there was no shortage of proof.
And honestly, the reason why we didn’t put our agreement in front of a lawyer is because it would have cost both of us a fortune. By no means am I saying that you should rule it out, but it can be highly prohibitive if you don’t have large sums of money on hand. Importantly, if your de facto relationship does come to an end, you need to complete any financial settlement within two years.Often, it’s only granted when you can show that you will experience hardship if it’s not granted and there’s a clear reason why it hasn’t happened sooner.
I knew what I was doing. I knew there was a financial risk, and it was a risk I was willing to take. While we had an agreement, it certainly wasn’t legally binding. The reality is binding financial agreements are a huge expense for your average couple living in a country town, or anywhere for that matter. If you miss this time frame, you need to apply to complete the settlement outside of the allocated window and the court decides whether this is approved or not. So, in this case, having a legally binding resource could be an excellent back-up.
Does a handwritten financial agreement ever hold up in court?
I’ve heard anecdotes from couples who ‘wrote something down’ in the form of typed up ‘contracts’ or even scribbles on pieces of paper. If funds are tight, can this ever be enough? According to family lawyer Laura Vickers, ‘A handwritten agreement might be evidence of what one or more parties intended, which would be one of the factors a court considers in making a decision.’
So that’s something, but the best chance of your agreement really sticking in court is if it’s backed by legal advice. Laura says a self-drafted document just ‘doesn’t have the protections of the Family Law Act that requires a court to follow it. Especially if it wasn’t accompanied by both parties having the full picture of the other’s assets and the benefit of independent legal advice for both parties’.
The AIFS reports that only about 3 percent have to go to court, 6 percent need lawyers to help them find a resolution and 10 percent will use family dispute resolution.Given binding financial agreements can come with a hefty price tag, it seems the expense could be difficult to justify if there is negligible difference between partners’ assets at the beginning of a relationship.
However, according to family lawyer Talya Faigenbaum, if there is a huge power imbalance that will likely emerge in court, the agreement could be overturned anyway. Research from the Australian Institute of Family Studies indicates that about ‘ 70 percent of couples can resolve their end-of-relationship issues between themselves ’. I find this heartening. I’d expected the number to be lower, and in fact assumed most people ended up in court. In which case stringent record-keeping is your best bet for getting a fair outcome.
Couple goals check-in
No one likes to think about their relationship coming to an end, but if there are assets held by one of you, or both shared jointly, you need to talk about it. Here are some discussion points to consider:
- Have we adequately discussed what would happen to our assets if our relationship ended?
- If we run a business, what would happen to that business if we separated?
- Do we need a binding financial agreement?
ABOUT THE AUTHOR
Relationship therapy for madison magazine, testing dating apps for Cleo before Tinder was even a thing. I’ve tackled some ridiculous assignments.
High profile celebrities and regular folks who’ve done remarkable stuff have told me their stories. For a while, I wrote the Australian Financial Review’s executive property section. I used to get paid to live-tweet The X-Factor, too. That was fun.
Today, I write features and branded content. My books, Smashed Avocado: How I cracked the property market and you can too and The Ethical Investor are available now. My next book is coming soon.
In 2021, I achieved the long-held goal of purchasing a heritage home. I arrived in the Goldfields town of Ballarat on my own and have since met and married my husband, Sam. We’re restoring our home together while embracing the slow pace of regional life with our fur girls, Frankie and Olive.