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FHOG DeFacto

Discussion in 'Accounting, Tax & Legal' started by jrc77, 18th Feb, 2009.

  1. jrc77

    jrc77 Well-Known Member

    Joined:
    26th May, 2008
    Posts:
    147
    All,

    I am currently doing some research into the first home owners grant. In particular the rules around the fact that one is not eligible for it if there de facto partner has already received it.

    It turns out that unwittingly I have become my fiancee's de facto partner hence making her ineligible for it. We have lived together for approximately a year however have no joint bank accounts, property or investments.

    I rang the NSW OSR this morning and they categorically told me that we are defacto partners "the moment her suitcase hit my floor" (which I personally find outrageous). The QLD FHOG seems to have a 2 year time limit before you become de facto (for the purposes of the FHOG), but not NSW.

    If my fiancee moved out into her own place (or back in with her parents) so that we were no longer living together does this then nullify the de facto relationship? I asked the OSR this and was told "we are not allowed to advise you on how to get around the legislation, but you could possibly interpret it that way".

    If she was to move out so that she could apply for the grant I suspect we would be wise to gather some proof that she had moved out - all mail sent to new address for example, change address on electoral role etc. Any other thoughts on this?

    The Property Relationships Act of 1984 is what they use to define a defacto relationship and it is extremely subjective. I quote:

    4 De facto relationships
    (1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons:
    (a) who live together as a couple, and
    (b) who are not married to one another or related by family.
    (2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case:
    (a) the duration of the relationship,
    (b) the nature and extent of common residence,
    (c) whether or not a sexual relationship exists,
    (d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,
    (e) the ownership, use and acquisition of property,
    (f) the degree of mutual commitment to a shared life,
    (g) the care and support of children,
    (h) the performance of household duties,
    (i) the reputation and public aspects of the relationship.
    (3) No finding in respect of any of the matters mentioned in subsection (2) (a)-(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
    (4) Except as provided by section 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship.

    Does anyone have any experience or thoughts on this?

    Please note that I am trying to get our circumstances to match the legislation so she is eligible for the FHOG, rather than misrepresent our status.

    Regards,

    JR
     
  2. Simon Hampel

    Simon Hampel Co-founder Staff Member

    Joined:
    9th Jun, 2005
    Posts:
    4,623
    Location:
    Sydney, Australia
    Do you live in a 2BR property ? Put a bed in the second bedroom and call it her room - housemate, not partner.

    While I do think the provisions are pretty rough for people who just happen to "shack up" with someone where there may not necessarily be a long term relationship involved (eg, only just moved in, no kids, no shared financial obligation, etc) ... I believe there does need to be a line drawn somewhere. 2 years living together is probably as good a line as any ... but "suitcase hitting the floor" is a bit rough in my opinion.