Volume 11, Issue 4: March 2009

STOP PRESS

As I have foreshadowed in all of my newsletters since I started my firm in July 2007, at long last the Federal Government has passed the amendments to the Family Law Act which bring de facto couples, including same sex couples, under the umbrella of the Family Law Act.

From the 22nd November 2008 de facto couples could enter into consent arrangements using the Binding Financial Agreements available to married parties to finalise their financial matters and to split superannuation which they could not do previously.

From the 1st March 2009 any couple that remained together after the 28th February 2009 in an intact relationship, provided it complies with the definition of “de facto relationship” contained in Section 4AA of the amended legislation, is now covered by the Family Law Act.

The criteria needed to be considered in determining whether a couple have a relationship as a couple include:

1. the duration of the relationship;
2. the nature and extent of their common residence;
3. whether a sexual relationship exists;
4. the degree of financial dependence or inter-dependence, and any arrangements for financial support, between them;
5. the ownership, use and acquisition of their property;
6. the degree of mutual commitment to a shared life;
7. whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
8. the care and support of children;
9. the reputation and public aspects of the relationship.

The definition section goes on to provide that no particular finding in relation to any circumstance is regarded as necessary in deciding whether the persons have a de facto relationship.

Obviously it is a discretionary exercise for the Court to determine whether people are in a de facto relationship. It is not like when you are married because you can tell if you are married, you have got a Marriage Certificate!

There are still questions raised as to whether people are in de facto relationships. That has been an interesting topic in a lot of de facto litigation over the last 10 years since Part 19 of the Property Law Act 1974 came into effect in Queensland.

I anticipate that there is going to be ongoing litigation in the Family Court and the Federal Magistrates Court as to whether people really were in de facto relationships.

However, from the 1st March 2009 couples that stay together and satisfy the definition of a couple in a de facto relationship can commence their proceedings for financial relief, property settlement and spousal maintenance in the Federal Magistrates Court or the Family Court.

Spousal maintenance is a whole new issue for de facto partners because under the Property Law Act 1974 you could not get spousal maintenance. Although there was a limited provision under the New South Wales de facto legislation it was never, or practically never, exercised ie., nobody got spousal maintenance as a de facto in New South Wales.
As indicated above, the new legislation applies to same sex couples and heterosexual couples. They have all of the rights that married couples now have including the right to split superannuation, settle properties, and enter into financial agreements in the same form as those used under the Family Law Act for married couples.

If you are in a de facto relationship and your relationship terminated before the 28th February 2009 and you were living separately and apart at that time, you still have the right to bring an application for property settlement against the other party under the provisions of Part 19 of the Property Law Act 1974 as amended, but those proceedings will have to be in the Supreme Court (or the District Court, which still only has a maximum jurisdiction of $250,000.00).

The benefits available to de facto partners in Queensland under the new legislation include:

1. the capacity to split superannuation;
2. the capacity to seek spousal maintenance;
3. the capacity to have the matter litigated in the Federal Magistrates Court or the Family Court which are more user friendly than the Supreme Court, as they are more used to dealing with these sorts of claims than the Supreme Court judges are.

There is still a requirement as under the State legislation that the Court will only make a property order if it is satisfied that:

1. the parties have been together for a total of at least 2 years; or
2. there is a child of the de facto relationship; or
3. the party that makes the application has made substantial contributions as defined under the Act; and
1. failure to make an order or declaration would result in serious injustice to the applicant; or
4. The relationship is or was registered under a prescribed law of a State of Territory, and if you have your relationship registered under a prescribed law of a State or Territory you don’t have to be together for 2 years, but you will probably find that in those States where you can register your de facto relationship there is a time that you have got to be together for before you can register the relationship!

If you are in doubt in respect of your relationship you can apply to the Court for a declaration that you were in a de facto relationship. There are similar provisions in Part 19 of the Queensland legislation previously.

Under the definition section of the Act a de facto relationship can exist between two persons of different sexes and between two persons of the same sex and, interestingly, a de facto relationship can exist even if one of the persons is legally married to somebody else or in another de facto relationship!

If you are together from the 1st March 2009 onwards, under the provisions of Section 39A(5) you cannot bring your proceedings for property settlement under any other Act than the Family Law Act.

But beware under Section 44 of the Act your application for settlement of property and/or a declaration and/or spousal maintenance can only be brought within the period of 2 years after the end of the relationship – “the standard application period”.

There is no such limitation on a married couple because a married person can bring an application for property settlement or spousal maintenance as of right up until 12 months after their divorce. If neither party files a divorce application, the parties’ right to bring a property settlement application and/or spousal maintenance claim can go on forever, whereas in de facto situations you only have that 2 year window of opportunity.

If you don’t apply within the 2 year period you have to satisfy the Court that hardship would be caused to the party or a child if leave were not granted in respect of a property settlement, or alternatively in respect of spousal maintenance if you are out of time you have to satisfy the Court that the applicant’s circumstances at the end of the standard application period ie., 2 years, were such that he or she would not have been able to support himself or herself without an income tested pension allowance or benefit.

It is very important that you bring your application within 2 years of separation because you can never guarantee the Court is going to allow you to bring an application to extend the period of time to start your proceedings. Two years goes extremely quickly.

Interestingly I had an application on Monday the 9th March in the Supreme Court to extend the period of time when the 2 year period had been allowed to elapse. That was a hard fought application strongly resisted by the other party, but fortunately my client was successful in extending the period of time but it was certainly not a guaranteed outcome.

The new legislation brings de facto partners into the Family Court and the Federal Magistrates Court. It is a positive step and something that we have been waiting to happen for a long period of time. The Supreme Court and the District Court will continue to deal with those parties who separated before the new legislation came in. They will also continue to deal with the so-called equity cases where people have not commenced their proceedings within the 2 year limitation period which applied under the Property Law Act 1974 and therefore are stuck bringing an application to the Supreme Court relying on equitable rules.

In the future most of this de facto litigation is going to be in the Family Court and the Federal Magistrates Court which is geared for conciliation and negotiation more than litigation, because of the amendments to the legislation and bringing the matter under the Family Law Act.

If you have a query in respect of a de facto relationship, a matrimonial matter or any matter, please do not hesitate to contact me or my staff.

CHARLES COOPER LAWYERS

Including:

Charles Cooper and Sally Southwood (Accredited Family Law Specialists), Damira Hidic (Senior Associate), Anish Rebello and Hayley Condon (Solicitors).

The material contained in this CCL Family Law Newsletter is of the nature of general comment only. No reader should rely on it without seeking legal advice.

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