English individuals and couples relocating to Australia: what you need to know

If you move to Australia with a partner, it is important to know that you could end up with the same property rights as a married couple, whether you intended that or not. Most people planning a move like this are thinking about visas, schools, careers, maybe where to live. Family law rarely makes the list. In my experience, it should.

I see this from both sides. I practised as a family lawyer in London before moving my practice to Sydney, and much of what follows is drawn from advising expat clients making exactly this move.

The Australian family law landscape is unfamiliar to many people arriving from overseas, and the protections, and exposures, that come with the move, are often not what people arriving from England expect.

A different legal landscape

In England, unmarried couples have very limited family law rights on separation, regardless of the length of their relationship or whether they have children. Many people still assume that living together for long enough creates something like a "common law marriage". It doesn't and never has. The government has consulted on wide-ranging reforms, but nothing has been decided yet, and any legislative change is still some way off.

Australia takes a very different approach. If you are in what Australian law calls a "de facto relationship", meaning you are living together in a genuine, committed way, you can end up with rights very similar to those of a married couple: a share of the property, and potentially ongoing financial support, if the relationship ends. This can apply even if neither of you ever thought of yourselves as anything like married.

When does this start to apply to you?

Broadly, Australian law recognises a de facto relationship once it has lasted at least two years, or there is a child of the relationship, or the relationship is formally registered, or one partner has made such substantial contributions that it would be unfair not to recognise them.

The two-year point is usually what matters most in practice, and it catches people out. If you've already been together for a couple of years in England before you relocate, that history comes with you. You could meet Australia's threshold for protection almost as soon as you land, without realising it. If your relationship starts after you've moved, the clock only starts once you're genuinely living together as a couple, but once it starts, it runs regardless of how the relationship came about.

There is also a residence requirement before an Australian court will get involved at all, so the exposure doesn't switch on the day you land. It builds gradually, as your time and life in Australia accumulate. But once it's engaged, it looks at the whole relationship, including the years you spent together in England.

For some couples, that's reassuring. For others, particularly those arriving with significant assets, a business, or family wealth built up before the relationship, it's a real exposure they didn't know they had.

What about an existing English pre-nuptial agreement?

This is the question I am asked most often by people arriving from England, and it's also the one where the answer depends most heavily on the specific facts.

Many people relocating to Australia already have an English pre-nuptial or post-nuptial agreement in place, particularly if they married, or were planning to marry, around the time of the move. Whether that agreement means anything in Australia depends significantly on how it was drafted and whether anyone thought about Australia at the time.

Occasionally, someone has had the foresight to take Australian advice alongside their English advice when the agreement was drafted and structured it so it also has the best chance of working here. In that situation, the agreement may already carry real weight, sometimes as much as an Australian agreement would.

For most people, though, the agreement was drafted with only English law in mind, and it won't automatically bind an Australian court. Australian law has its own formal requirements for these agreements, including that both parties receive independent legal advice from an Australian lawyer, and an agreement that never had that won't meet them on its own.

That doesn't mean it's worthless. An Australian court can still take it into account as evidence of what you both intended when you signed it, particularly if it was properly prepared and both of you made full disclosure at the time. It just won't carry the same weight it would in England.

If there's any realistic chance Australia is in your future, the better approach is to take Australian advice at the same time as your English advice, so the agreement is built to work in both places from the outset, rather than trying to patch it up later.

Putting your own protection in place

Australia has its own version of the pre-nup, known as a binding financial agreement, and done properly it can be very effective. If you haven't yet started a relationship when you arrive in Australia, or your relationship hasn't yet reached the point where Australian protections apply, that's actually the best time to put one in place, while you're dealing with the position prospectively rather than trying to untangle it once the relationship is already underway.

If marriage is on the cards, you have more flexibility still. A marital agreement in Australia can be signed at any point and wherever you happen to be living, so long as it's before the wedding, which gives couples planning to marry considerably more room to move than de facto couples have.

What I see people get wrong

In my experience, people arriving in Australia from England tend to underestimate two things. The first is how quickly Australian protection can build once you're genuinely settled here as a couple. The second is just how broad the court's view of "contribution" is: not just money, but raising children, running a household, supporting a partner's career. In Australia, that applies to unmarried couples in almost the same way it applies to married ones, which can feel quite different from what people in England are used to.

Questions to ask yourself

• Do you have significant assets, a business, or family wealth from before this relationship that you'd want to protect?
• Do you already have an English pre-nuptial or post-nuptial agreement, and have you considered whether it would hold up in Australia?
• Are you planning to marry, and have you thought about the timing of putting an agreement in place?
• Have you actually taken Australian advice, or just assumed your English planning already covers it?

None of this needs to be complicated, and dealing with it early is far easier than trying to fix it once a relationship has already broken down. Australia has one of the most comprehensive family law regimes in the world for unmarried couples, which is a good thing for many people, but it means the risk on relocation is not usually a loss of protection; rather, it is exposure you didn't know you had taken on. If you're planning a move to Australia, or you've recently arrived and want to understand where you stand, I'd be glad to talk it through with you.

Charlotte Symes is dual qualified to advise on Australian and English family law. She is a lawyer, mediator and collaborative practitioner, assisting clients who face complex financial, property and parenting issues arising from separation and divorce. Get in touch with Charlotte here.