Partner Visa Property
The client plans to sponsor their partner for a partner visa and is concerned about property rights should the relationship end. They began their de facto relationship in 2022 and have been cohabiting for over a year. The client acquired a property in 2010, prior to the relationship, and is uncertain if this or any future acquisitions made with their own funds could be claimed by their partner. They have no written agreements regarding property or financial matters but are interested in establishing a Binding Financial Agreement for asset protection. The client seeks clarity on their obligations as a sponsor under the partner visa scheme.
Questions about this case
These answers have been verified by a lawyer in the LEAP networkWhat are the legal requirements for sponsoring a partner under the partner visa in Australia, and how might our de facto status influence this?
To sponsor your partner under a partner visa in Australia, you must be an Australian citizen, permanent resident, or eligible New Zealand citizen. As a sponsor, you need to demonstrate a genuine and continuing de facto relationship for at least 12 months prior to the visa application, unless registered under state-based relationship registries. Cohabitation plays a key role in proving the legitimacy of your relationship. Your de facto status allows for the inclusion of your partner in the application, provided you meet all criteria, including character and sponsorship obligations.
In the event of a relationship breakdown, how does Australian law typically handle the division of property that was acquired before the relationship?
Under Australian law, property acquired before a de facto relationship typically remains the sole property of the original owner. In the event of a relationship breakdown, the Family Court considers factors like financial and non-financial contributions made by both parties during the relationship when deciding on the property division. However, assets acquired before the relationship commencement are generally considered separate property unless the partner made significant contributions.
How might a Binding Financial Agreement protect my assets acquired prior to the relationship, and what steps are involved in setting one up?
A Binding Financial Agreement (BFA) can safeguard your assets acquired before the relationship by outlining how property and financial resources will be divided in case of a breakup. It is crucial to ensure the BFA covers properties and assets acquired solely with your funds during the relationship. To set up a BFA, both parties must seek independent legal advice to understand the agreement's implications and draft it with a lawyer, ensuring it meets legal requirements under the Family Law Act. Both parties sign the agreement, having received legal certification.
What impact, if any, does cohabitation have on property division under Australian family law if the relationship ends?
Cohabitation in Australia can impact property division under family law if the relationship ends. Upon separation, de facto partners may have claims to property, depending on various factors. Property acquired during the relationship could be subject to division, while pre-relationship property is generally not divided unless significant contributions are made.
What are my legal rights and obligations when entering a de facto relationship and sponsoring for a partner visa?
In Australia, entering a de facto relationship and sponsoring a partner for a visa carries specific legal rights and obligations. Legally, de facto partners may be entitled to a share of each other's property. However, property acquired before the relationship is typically considered separate unless your partner contributed to its maintenance. A Binding Financial Agreement can help protect your assets, and as a sponsor, you have financial responsibilities to your partner.
Can I draft a written agreement with my partner regarding our financial arrangements?
Yes, you can draft a written financial agreement with your partner, but it won't be legally binding unless formalised as a Binding Financial Agreement (BFA) under the Family Law Act. A BFA must adhere to specific requirements, including both parties obtaining independent legal advice. Without a BFA, a court can disregard your agreement in a property dispute.
