De facto couples who separate (including same sex couples) will soon be able to sort out their property affairs under federal family law in the same way as married couples.
The changes will apply if:
• you separated after the new laws start on 1 March 2009, and
• you were in a de facto relationship for at least 2 years before separation (unless you have children, or you have registered your relationship).
At present, de facto couples’ property law is split between State and federal systems – children’s matters are national laws dealt with in the family law courts and de facto property matters are covered by State laws in State courts. Under State de facto law, super splitting is not available.
When the reforms start, de facto couples will be able to settle all their family law issues together in the same court process. They will also be able to split super, if this is an appropriate outcome, as married couples do now.
However, the new laws will not create any automatic rights, or any assumptions of a 50/50 split of property or super. You will not be required to split or transfer anything, unless you have a legally binding agreement, or there are orders from the court to do so (including consent orders). This is the same as for married couples under the current law.
How you split your property and super, if at all, will depend on what you both agree, or what a court decides is a fair outcome in your circumstances. As for married couples, the principles of family property law firstly identify the property of the relationship, then look at financial and non financial contributions made by each party, and future needs.
A likely sticking point in these new family law cases will be whether the parties had a de facto relationship. This problem doesn’t usually arise with married couples, because the fact of marriage is easily proved. For de facto relationships, the relevant factors will be things like:
• whether you lived together, and for how long
• the degree of your financial dependence
• how you shared your finances, and
• the public appearance of your relationship.
If couples can’t agree they had a de facto relationship (or that it meets the 2-year test), they can apply to the family courts for a declaration about the existence of the relationship. Then this issue can be sorted out before the case goes any further, and ideally will still settle by consent.
For de facto couples covered by the new laws, these changes are likely to make for a cheaper, more efficient process. It will be important to seek out specialized family law advice, as these changes are complex and new to law.
For the family law system, these changes bring in a new class of relationships to family property law. While this is long overdue in the interests of fairness to de facto couples, it comes at a time when the family law courts’ workload is already under strain. This will be challenging for litigants, lawyers and the federal government.
About the author
Lee Galloway is a family lawyer, and developed these reforms as a principal legal policy adviser with the federal Attorney General’s Department in Canberra. She has now returned to practice in the Hunter Valley, as Galloway Family Law – phone 4934 6935, or visit www.gallowayfamilylaw.com.au.
The above article is a general introduction to these reforms – you should seek legal advice about your particular case.
