The New DeFacto Regime - When DeFacto Relations Break Down: New Commonwealth Law for Separating DeFacto Couples By Jacqueline Cull

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Author: Jacqueline Cull

The parties to a DeFacto relationship who separate after 1 March 2009 can now have their property and maintenance matters dealt with under the Family Law Act 1975.  Prior to the 1st March 2009 any party to a DeFacto relationship who wished to have a property adjustment did not have access to the Family Court.

Unfortunately, this new regime of law does not apply to DeFacto couples whose relationship broke down before 1 March 2009.  However, if both parties agree they can 'opt in' to the new DeFacto laws.

There are four gateway requirements.  They are as follows:-

1.      The relationship has lasted for at least 2 years; or

2.      There is a child of the DeFacto relationship; or

3.      A party has made a substantial contribution and a failure to make an order would
         result in a serious injustice to the applicant; or

4.      The relationship has been registered under a prescribed law of a State or Territory.

The new DeFacto provisions largely mirror the existing Family Law Act provisions that relate to married couples.  In other words a party to a DeFacto relationship which has broken down who is seeking a property adjustment would have the matter dealt with in the same way as parties to a marriage.  The Court would consider their respective contributions throughout the relationship in both an economic and non economic sense and the Court would then consider both parties' future needs. 

When a marriage breaks down the Family Court considers s.79 (4) which deals with the parties’ contributions and then the Court considers s.75 (2) which has regard to the parties' future needs.  In DeFacto relationships the Court would consider at s.90SM (4) dealing with contributions and the factors listed in s.90SF (3) regarding to the parties future needs.  It is important to note the new laws now allow superannuation interests of DeFacto parties to be split.  Again, this mirrors the provisions for married parties.

One of the ground breaking changes made by these new laws is there is a new definition of DeFacto relationship.  A DeFacto relationship is one in which the parties are:

·   not legally married to each other;

·   not related by family; and

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

A DeFacto relationship can exist between two persons of different sexes or between two persons of the same sex.  Further, a DeFacto relationship can exist if one of the persons is legally married to someone else or in another DeFacto relationship.

In order to ascertain whether the parties have a relationship as a couple, the Court would look at a number of circumstances including:

·    the nature and extent of their common residence;

·    whether a sexual relationship exists;

·    the degree of financial dependence or interdependence;

·    the ownership use and acquisition of their property;

·    the degree of mutual commitment to a shared life;

·    the care and support of children; and

·    the reputation and public aspects of their relationship. 

One of the main factors to consider is the nature and extent of the parties' common residence.  It may be that the parties have lived together for some periods of their relationship and not at other times.  If the parties have not habitually shared a home, then it is more difficult to persuade the Court that a DeFacto relationship exists and more consideration would be given to the other factors referred to above.  Similarly, another important factor is the reputation and the public aspect of their relationship.  One party may be able to prove the public aspect of the relationship by providing evidence of conversations with third parties and the use of terms such as "partner" or “boyfriend”. The Court could also consider evidence found in documents such as applications for finance, tax returns, insurance proposals, medical records, school enrolments forms and documents of a nature which often have a space for information relating to a DeFacto spouse. 

From 1 July 2009, the parent of a child of a same sex relationship which has broken down can apply for child support from the other parent.  A child is a child of a DeFacto relationship, if the child is a child of both parties to the DeFacto relationship. This is another area where the law has changed.  The changes mean that both parties to either a marriage or DeFacto relationship will be parents under the Act, of a child where both parties are biological parents, where the child was adopted by the parties with consent of the other or where the child was born through artificial conception procedures.  This change gives the status as parent to the non birth mother of a child of a lesbian relationship or a child born as part of a surrogacy arrangement where the Court has made an order regarding the child's parentage.  This could potentially cover a child born as a result of a surrogacy arrangement involving a gay couple.  It is important to note that presently, the Australian Capital Territory is the only place in Australia that allows same sex couples to enter into surrogacy arrangements.

Another change which has been made by the new laws is that parties to a DeFacto relationship may now enter into a Binding Financial Agreement in similar terms to the Binding Financial Agreements made before (Section 90B), during (Section 90C) or after (Section 90D), a marriage. Binding Financial Agreements between parties to a DeFacto relationship are as follows:

·   Binding Financial Agreement before the DeFacto relationship – Section 90UB Areement;

·   Binding Financial Agreement during the DeFacto relationship – Section 90UC Agreement; and

·   Binding Financial Agreement made following the breakdown of the DeFacto
    relationship – Section 90UD Agreement.

The Courts having jurisdiction under the new legislation are the Family Court of Australia, Federal Magistrate's Court of Australia, the Supreme Court of Northern Territory and Courts of Summary jurisdiction (Local Courts).  It is important to note, however, currently South Australia and Western Australia are the two States that do not have referred power. 

The new DeFacto laws rely on the States referring power pursuant to s.51 (XXXV11) of the Constitution.  In other words the new laws apply to couples whose DeFacto relationship has a geographical connection to NSW, Victoria, QLD, Tasmania, ACT and the Northern Territory.  Where orders are sought in the Family Court the new laws will apply if the couple were ordinarily resident in one of those States or Territories when their DeFacto relationship broke down.

Finally, it is important to note that a financial application can only be brought in a DeFacto matter if the application is made within 2 years from the end of the DeFacto relationship. 

If you would like to discuss your defacto relationship  issue  please do not hesitate to contact Jacqueline for assistance at Eddy Neumann Lawyers on 9264 9933 or email info@eddyneumann.com.au.

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