Australian Family Law Act Changes
New Legislation for Same Sex Couples to Access Family Court (AUS)
May 5, 2009
On 1 March 2009 the Federal Government introduced new legislation dealing with de-facto couples. From a practical perspective this means that couples that are not married can now access the Family Court of Australia (and the Federal Magistrate Court) to obtain orders with respect to property division and spouse maintenance.
The Law Before 1 March 2009
Prior to the change, unmarried couples had to seek relief in the state based courts. This system meant that each state had its own legislation that dealt with de-facto couples. In addition, with the state based system, which court one used depended on size of the asset pool.
What the Family Court Takes into Account
Factors that are taken into account by the Family Court when deciding cases were not taken into account in the state based courts, and often women found themselves not receiving a just and equitable outcome.
The Family Court can now make an order with respect to property owned by the couple jointly or separately, it can split superannuation (married couples have been able to do this for some time now) and spouse maintenance can also be ordered.
The Court will make an order if it is satisfied that:
- The period of the de-facto relationship is at least 2 years.(or)
- There is a child of the relationship.(or)
- One partner made a substantial financial or non financial contribution as homemaker and or parent and a serious injustice would be suffered if that order was not made. (or)
- The de-facto relationship has been registered in a state or territory.
Relationships that are Covered
According to the new legislation, a de-facto couple is one where two people who are not related live in a bona fide domestic relationship. This can include same sex couples. For the new act to apply, the relationship must have ended after 1 March 2009. If it ended prior to that date, both parties can consent to their matter being resolved in the Family Court.
All circumstances will determine if the couple has been in a de-facto relationship including:
- The length of the relationship
- The nature and extent of their common residence
- If a sexual relationship existed between them
- The degree of financial dependence and interdependence that existed between the couple and any arrangements for financial support
- The degree of a mutual commitment to a shared future life
- If the relationship has been registered in any state or territory
- The care of any children of the relationship
- The public aspect and reputation of the relationship
When to Apply
An application must be made to the Family Court or the Federal Magistrate Court within 2 years of the relationship having come to an end. In limited circumstances the Court may grant leave for an extension of time.
Practical Implications
The new law may bring about changes, particularly for women, with respect to how property is divided between de-facto couples. Up until now the court did not recognize future need or allow the splitting of superannuation which represented a disadvantage to those in the relationship that stayed at home as homemaker and or parent. Now that the Family Court will decide these cases the financial in-equity should minimise if not disappear all together.
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