Could a live-in housekeeper or carer be entitled to claim financial assistance from you or a make claim against your property?
If you employ a housekeeper or carer, particularly if that person lives in your home, the last thing you would want is for that person to make a claim against you alleging that a domestic relationship exists and in turn claim financial assistance from you or make a claim against your property.
How do you avoid this happening?
Legally Recognised Relationships:
There are various relationships recognised under NSW law which can have financial consequences if such a relationship is found to exist. Examples of these relationships include De Facto relationships and Close Personal Relationships.
A De facto relationship exists if two adults live together as a couple.
If there is a dispute as to whether there is a De Facto relationship, elements that may indicate whether or not it exists include:
- The length of the relationship (usually a minimum of two years).
- The nature and extent of their common residence.
- Whether a sexual relationship exists.
- The degree of financial dependence or interdependence, and any arrangements for financial support, between you both.
- The ownership, use and acquisition of property.
- The degree of mutual commitment to a shared life.
- The care an support of children.
- The reputation and public aspects of the relationship.
A Close Personal Relationship exists between two adults who are not related, who live together, and in circumstances where one party provides domestic and personal care to the other.
Elements indicating a Close Personal Relationship include:
- Cooking
- Washing
- Providing accommodation
- Shopping for parties
- Assisting with personal hygiene
But not:
- Where there is a fee or reward involved
- Where the action is being done on behalf of another person or an organisation (for example where work is being performed on behalf of a charity or government organisation)
If you employ someone to do household chores or to care for you and you are paying them for those services, there is no immediate need for alarm.
As long as a housekeeper or carer is paid for the services they provide, they have entered into a commercial relationship and cannot claim to be in a Close Personal Relationship. This then means that the housekeeper or carer would not have any special right to make a claim as being a party to a Close Personal Relationship.
Claims are likely to be made by an employee when the lines have blurred, that is where a person has been employed as a housekeeper or carer but the relationship develops into something more than what was previously contemplated. They may have started as an employee, but subsequently personal elements formed part of the relationship.
If the relationship with the housekeeper does develop into more than just a commercial relationship and the employee is not paid for all services performed this can possibly create a legal domestic relationship.
What You Can Do:
If a De facto or Close Personal Relationship exists then this may entitle the employee to financial support, for example in the form of maintenance.
If you wish to employ a housekeeper or carer to act in that role only, we recommend that you enter into an employment agreement with that person. This will provide clear evidence of your intention and the nature of your relationship.
It is very important that the housekeeper or carer is paid for work they do, and you must ensure the relationship remains commercial in nature and does not develop personal aspects.
If the above conditions are met it is unlikely that a person employed strictly as a housekeeper or carer would have any special right to make a claim as being part of a domestic relationship.
Champion Legal can assist you if you are in a situation like this.
ANDREA CARNUCCIO
Law Clerk
NEIL JAMIESON
Principal
Family Law
