1. Myth: “The Property Relationships Act applies after 2 years!” - Wrong Generally, the time period for a relationship to become what is known as a qualifying relationship under the Property (Relationships) Act 1976 is 3 years from the commencement of the relationship. This time period can be shorter if there is a child in the relationship or the applicant has made a substantial contribution to the relationship. The 2 year period is the period a married couple must be separated before the marriage can be dissolved (i.e. divorced). 2. Myth: “It’s my property – I can leave it to whomever I want!” Wrong (sort of) This statement highlights the tension between what lawyers refer to as “testamentary freedom” that a Will-maker has and rights certain persons have under various statutes and law. While it is true that a Will-maker can do what they want with their property, this is not absolute. A Court can order a different distribution where a Will-maker fails in what is known as their “moral duty” to make “proper maintenance and support” for family members. In addition partners have rights under the Property (Relationships) Act 1976, and the Law Reform (Testamentary Promises) Act 1949 can assist persons to whom the Will-maker has made promises to provide for them in return for work or services done in the Will-maker’s lifetime. The rules of equity may also affect the Will-maker’s testamentary freedom. 3. Myth: “I’ve been in a relationship for 30 years so surely I can make decisions for my partner who has lost mental capacity!” – Wrong Despite the length of a relationship (marriage/de facto/civil union) if one of the partners loses mental capacity the other partner has no right to make decisions for their incapacitated partner in relation to their property and/or their personal care and welfare, unless the incapacitated partner has completed Enduring Powers of Attorney. If the incapacitated partner has not completed Enduring Powers of Attorney applications to the Family Court will need to be made for the appointment of a Property Manager (or Administrator if there are not significant assets) and a Welfare Guardian. 4. Myth: “I can buy/sell a house without a lawyer involved” – Wrong (sort of) In theory, a layperson can buy or sell a home without the involvement of a lawyer but (and it is a big but) it would be very difficult to do so (not to mention the risk of doing so). If bank lending is involved, the bank will insist on the involvement of a lawyer to act on its behalf and may even decline to lend if a buyer is not legally represented. Even if the bank was prepared to lend it is likely it and its lawyers would impose so many conditions and requirements (in order to protect the bank’s position) that it may be practically too difficult for a buyer act for themselves. Furthermore, with the land register now being predominantly electronic, relying on lawyers with the requisite certifications, it will be difficult for a non-licenced person to transact the registrations. Again, in theory, these can be done manually in paper form but the formalities involved in doing so is likely to make it practically difficult (if not impossible) for a buyer or seller to do so. This is general information about the current law, not advice on a specific matter. Article by: Kevin Callinicos

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