Article published in the Newcastle Herald on 16 February 2009, and in the Maitland Mercury on 27 January 2009
Author: Lee Galloway
Summary :De facto couples (including same sex couples) will soon be able to sort out their financial affairs under federal family law in the same way as married couples, when new reforms take effect from 1 March 2009. Lee Galloway explains these changes.
Lee developed these reforms as a legal policy adviser with the federal Attorney-General's Department in Canberra, and has now returned to the Hunter Valley, and to specialised family law practice as Galloway Family Law.
Lee is available for advice - in person, by phone or online at lg@gallowayfamilylaw.com.au.
Why are these changes happening?
Until now, when de facto couples separated, their financial arrangements have been covered by State and Territory law, which often meant 'border' disputes about which State law applies, and a costly, clunky process in State courts better suited to commercial claims. These problems affected both sides of the dispute. Recent changes to the law will put de facto (including same sex) couples on an equal footing with married couples when dealing with their financial arrangements on separation. Married couples have long had the benefits of a national family law scheme covering children's and financial matters under the same laws, in the same court process, which is more user-friendly than State courts. When the reforms start, de facto financial matters can be dealt with in the family law courts, along with children's issues, and along similar lines to the way married couples settle their financial affairs, so there is no 'different treatment' for de facto couples.
In a practical sense, this means that de facto (and same sex) couples can make consent arrangements in the Family Court covering their property settlement and child arrangements, and can refer to a more settled, uniform, national system to help them decide a fair outcome.
Who is covered by the changes?
People living in a de facto relationship for more than two years before separation. If your relationship is registered or you have a child together, the two-year duration test does not apply. However, you still need to establish you had a de facto relationship for the new laws apply. The relevant factors here 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 you can't agree that you had a de facto relationship, the person applying for remedies under the new laws can ask for a declaration of the existence of the relationship, and this issue can be sorted out before the case goes any further. This could be an area of dispute that doesn't arise for married couples - if you're married, you're married; whereas the start and end of a de facto relationship is often murky.
Also, the new laws will only pick up 'new' cases - they will only apply to couples who separated after the date the new laws come into effect. If you separated before the start date (1 March 2009) or you had a financial agreement under the old State laws, you will continue to be covered by State law, but you can both consent to opt in to the new federal laws.
How will these laws affect de facto couples?
It will vary from case to case (just like federal family law applying to married couples). The general principles applying to married couples - which recognizes the particular facts of the case when diving assets of the relationship, looking at specific financial and non-financial contributions, and future needs - will now apply to a broader range of couples. The right outcome for all couples will depend on the particular circumstances.
There is one major difference. Under the reforms, a de facto property settlement will be able to provide for super splitting, so long as this is an appropriate outcome.
Does this mean my de facto partner and I have to split our assets and super if we separate?
No. Just as for married couples under current federal family law, you are not obliged by law to split or transfer anything, unless you have a legally binding agreement, or orders from the court to do so (including consent orders).
And just as for married couples, if you don't agree about property settlement, a party to the relationship who seeks a split will be able to apply to the family law courts, and the issue can be resolved by consent, or decided by the courts, in legally binding terms.
How you split your property and super will depend on what you both agree, or what a court decides is a fair outcome in your particular circumstances, considering the financial and non-financial contributions made by each of you during your relationship, and your respective future financial needs.
