Wednesday, 12 November 2008

De facto bill passes

The Senate on Monday passed the changes to the Family Law Act. The Parliament House website reports that there were 34 amendments to the Bill at Committee stage in the Senate.

The de facto changes will allow de facto couples, including same sex couples, in effect the same rights as married couples as to property settlement (including super splitting)and spousal maintenance, and create a partial national scheme enabling those couples to go to the Family Court and the Federal Magistrates Court.

Some agreements entered into before the commencement(expected in March) between de facto couples will be agreements under the changes. Couples will have the opportunity, under limited circumstances, to opt into the changes. Otherwise the changes will only apply to those who separate after the changes take effect.

It is essential that those who are considering separating get legal advice now- as the changes might make a significant difference to their rights.

Last I heard, the scheme applied to all States and Territories except Western Australia and South Australia, although the Commonwealth was still negotiating with them, and in some respects the scheme will still apply to those States.

The next post will be a very long paper I prepared about the Bill (but not including the current amendments).


Fitzroyalty said...

Comments elsewhere suggest the new law broadens the definition of de facto to include non cohabiting long term relationships. Is this your understanding? This suggests it is impossible to avoid being trapped by this law. Until now, people in some states in long term relationsips have avoided living together to avoid being trapped by the existing de facto laws. It now appears impossible to have a romantic or sexual relationship without the government assuming that it must have economic consequences. I thought that was the definition of prostitution?

Stephen Page said...

The starting point is the definition in the new section 4AA:

4AA De facto relationships
Meaning of de facto relationship

(1) A person is in a de facto relationship with another person if:

(a) the persons are not legally married to each other; and

(b) the persons are not related by family (see subsection (6)); and

(c) having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Paragraph (c) has effect subject to subsection (5).

Working out if persons have a relationship as a couple

(2) Those circumstances may include any or all of the following:

(a) the duration of the relationship;

(b) the nature and extent of their common residence;

(c) whether a sexual relationship exists;

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

(e) the ownership, use and acquisition of their property;

(f) the degree of mutual commitment to a shared life;

(g) whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

(h) the care and support of children;

(i) the reputation and public aspects of the relationship.

(3) No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.

(4) A court determining whether a de facto 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.

(5) For the purposes of this Act:

(a) a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and

(b) a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

When 2 persons are related by family

(6) For the purposes of subsection (1), 2 persons are related by family if:

(a) one is the child (including an adopted child) of the other; or

(b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or

(c) they have a parent in common (who may be an adoptive parent of either or both of them).

For this purpose, disregard whether an adoption is declared void or has ceased to have effect.

The key to this conulted definition is in (1)(c) that they must have been "living together on a genuine domestic basis".

The other part to the key is in (5) that someone can be married AND also have a de facto relationship, or be in a de facto relationship and another de facto relationship.

So if you have a long term non co-habiting relationship you should not be caught under this law.

However, it has always been the case that if you are not co-habiting, common law principles of trusts, unjust enrichment etc might apply anyway.

Probably the reason that multiple relationships can be included is because of a case in NSW some years ago when a man had 3 cohabiting relationships- and each woman thought that they were the only one- to discover there were two others!

Finally, a claim cannot be brought unless there has been a de facto relationship for 2 years or more, OR a child is born OR there has been some substantial contribution [ so ordinarily if the relationship is less than 2 years in most cases that contribution would be a financial one eg buying a house together] OR they are registered on a relationships register (which exist in Tasmania, Victoria and the ACT).