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 by 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.
De facto relationship
A De facto relationship exists if two, non-related, adults live together as a couple.
When determining whether a de facto relationship exists, relevant considerations include:
- The length of the relationship;
- 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 and support of children; and
- The reputation and public aspects of the relationship.
Close Personal Relationship
A close personal relationship is different to a de facto one, not least of all because the two adults may be related. Indeed, when ascertaining whether this type of relationship exists, the criteria associated with being a ‘couple’ in a de facto relationship do not apply.
Rather, to be in a close personal relationship, the law requires that the two adults live together and that domestic support and personal care are provided. It is irrelevant whether only one person does the supporting and caring, or if these are reciprocal.
In relation to the first requirement, living together, the mere sharing of accommodation is sufficient. In fact, the court has commented that this criterion may be met in circumstances where a boarder resides in the home of another person.
The second requirement, domestic support and personal care, is less easy to satisfy than the first, in that it requires interaction between the two adults. Accordingly, elements indicating a Close Personal Relationship include:
- Cooking
- Washing
- Providing accommodation
- Shopping for parties
- Assisting with personal hygiene
Where domestic support and personal care is provided for fee or reward, or where those actions are 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), a close personal relationship will not result.
Thus, 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. Indeed, payment transforms the relationship from a potentially close personal one to a commercial relationship. As a party to a commercial relationship, the housekeeper or carer would not have any special right to make a claim against your assets.
This is borne out by the fact that claims are more 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/carer 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
Solicitor
NEIL JAMIESON
Director, Family Law
