In March 2009 new laws came into force which brought de facto couples under the Family Law Act 1975 for the purposes of property division and spousal maintenance. This move represents a marked change, as prior to 2009 it was only cases pertaining to the children of de facto couples which came within the federal family law structure.
Aside from ensuring uniform laws nation-wide regarding the treatment of the property and finances of de facto couples post-separation, the changes also saw de facto couples achieve parity with married couples. Now, de facto couples, when they separate, can obtain property settlements on the principles that apply under the Family Law Act 1975 to married couples. Due to the definition of de facto, this parity extends to same-sex de facto couples as well.
Why are the new laws different?
Under the respective State legislations, the State Courts broadly determined what assets constituted the financial assets and liabilities of a de facto husband and wife and then determined the contributions, both financial and non-financial, that each had made to the acquisition, improvement and preservation of those assets. Having made those two enquiries, the Court then determined the division that should occur.
The extra step that is taken under the Family Law Act is to assess the future needs of the parties arising from their age, health, capacity to earn income, care of children and the effect the marriage has had upon the earning capacity of a party, among other considerations.
If one party receives a greater percentage of the assets than the other, in the Family Court, it is in most cases because of this additional step.
Today, the Family Court is required to treat de facto relationships “as if”’ they were marriages. The asset division of de facto couples is determined by the three steps undertaken by the Family Court, rather than the two steps undertaken by the State Courts. From a financial point of view, de facto relationships are therefore on the same footing as marriages.
What kind of orders can the Family Court make?
The Family Law Courts can order that property (whether owned by the parties separately or together) be divided, that superannuation be split and the spousal maintenance be paid.
Such orders can be made when the Family Law Courts are satisfied that:
- The parties were engaged in a de facto relationship for at least 2 years; or
- There is a child of the relationship; or
- One partner made significant contributions (whether financial or non-financial) to the property, or in their capacity as a homemaker or parent, and a serious injustice will be perpetrated if an order is nor made; or
- The de facto relationship has been registered in the relevant State or Territory.
NEIL JAMIESON
Principal
Accredited Specialist Family Law
