The Family Court has had the jurisdiction for many years to deal with children of de facto marriages and deals with the children of both former marriage partners and former de facto partners in the same manner.
The States and Territories never referred their power over the financial matters of de facto marriages to the Commonwealth and the States retained jurisdiction to deal with the division of assets of de facto marriages.
The current proposal is that the Family Court have jurisdiction to deal with the division of assets of de facto couples.
Each State has de facto legislation which is different from each other State.
It is expected that if the Commonwealth accepts the referral of powers, and the matters relating to de facto property matters be dealt with in future by the Family Court, the Family Court will deal with the division of the property of those relationships in the same way as they deal with the division of property in marriages.
Under the respective State legislations, the State Courts broadly determine what assets constitute the financial assets and liabilities of a de facto husband and wife and then determine the contributions, both financial and non-financial, that each has made to the acquisition, improvement and preservation of those assets. Having made those two enquiries, the Court then determines 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.
If the Commonwealth Government gives the power over de facto relationships to the Family Court, and if the Family Court is required to treat those relationships “as if”’ they were marriages, then the asset division of de facto couples will be determined by the three steps undertaken by the Family Court, rather than the two steps undertaken by the State Courts.
Therefore, from a financial point of view, de facto relationships will therefore be on the same footing as marriages.
Whether the introduction of legislation causes a flurry of separations with one of the parties seeking to have their matter filed in the State Courts to avoid the jurisdiction of the Family Court will remain to be seen.
NEIL JAMIESON
Accredited Specialist
Family Law
