Don’s Family Law Blog

 The new federal de facto legislation commences operation on the 1^st March.  De facto property disputes and de facto spouse maintenance issues (including same sex) will then be the domain of the federal Family Law Courts.
There will be a large case load, including some pent up demand from those waiting in the belief the new regime will be more favourable.

The Government was asked for 6 new judicial officers to meet this predicted demand.  One is to be appointed.

Perhaps the demand could be met by some underemployed judges working more efficiently.

 I suspect the proposed law to extend spouse maintenance to defacto couples is ahead of community attitudes.  A more acceptable approach would be to limit claims to spouse maintenance to only those relationships with a child.

 “Philandering husbands could soon be forced by the courts to keep paying for their mistresses after an affair ends”  So says the Courier Mail.

Rest easy philandering husbands.  Mistresses will not be entitled to maintenance.  The proposed amendments to the Act define a de facto relationship as:

the persons are not legally married to each other; and

the persons are not related by family; and

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

Could you really confuse the role of a mistress with the role of a spouse?  I don’t think so.  Sensationalism lives.

Special Counsel, Adam Cooper was recently interviewed by Richard Szabo for Legal Business Online Magazine.

Adam gives his views on the proposed changes to defacto legislation and its possible flow-on effect for companies and third parties.

 To read the article, click here

 By way of an update on a previous post on this blog (25 June 2008),  the bill to bring defacto property matters under the jurisdiction of the Family Court of Australia was introduced to the House of Representatives on 25 June 2008.  A report of the Senate Legal and Constitutional Affairs Committee is due to be completed on 27 August 2008.

Once the bill is enacted parties to a defacto relationship, defined as 2 people (of the same sex or opposite sex) that are living together as a couple on a genuine domestic basis, can bring applications for property adjustment and/or maintenance.  The court is able to make a declaration that a defacto relationship exists, the length of the relationship and what contributions have been made, regardless of whether one of the parties is legally married to another person.

The new legislation will apply to those couples whose relationship breaks down after the change to law is made.  Applications can be made if:

(a)                    The relationship was registered under state or territory law; or

(b)                    there is a child; or

(c)                    the relationship has endured for 2 or more years; or

(d)                    substantial contributions were made and failure to make an order would result in a serious injustice.

Under the new laws the court may consider orders for maintenance which was previously not available under state and territory laws.  The obligation to maintain a former partner will apply only if it is determined that the applicant for maintenance is unable to adequately support themselves due to their obligations to care for a child of the relationship, or for other reasons such as their state of health or age.  The ability of the payer to reasonable meet any maintenance obligation is also considered.

When deciding issues of property adjustment the court will apply essentially the same weighting to  contributions and future needs factors as is presently applied to married couples.

The reforms are long overdue.  I wonder, however, if introducing “spouse” maintenance to defacto couples is a stretch too far.

The Attorney-General has today announced the Rudd Government’s introduction of legislation which will allow de facto couples (regardless of whether they be same-sex or opposite-sex couples) to bring proceedings for property and maintenance in the Family Court of Australia.

De facto financial disputes have been dealt with by State and Territory courts.  If the parties have children, then any child related issues have been dealt with by the Family Court of Australia, resulting in the need to bring proceedings in 2 jurisdictions and the consequential financial and emotional burden this imposes on the parties.
The changes are long overdue, not least because presently the laws are inconsistent on the issue of de facto property matters across Australia.  This landmark legislation is the implementation of an agreement reached at the Standing Committee of Attorneys-General in 2002.

In the press release the Attorney-General Robert McClelland is quoted “This honours a commitment in the Government’s National Platform to ensure that family law applies in a consistent and uniform way to de facto relationships.  Consistent with the Government’s policy, the legislation will not discriminate between opposite-sex and same-sex de facto couples.  Nothing in the legislation will alter marriage laws”

In 1999, 9.7% of all Queensland couples were living in defacto relationships.  The Australian Bureau of Statistics records that (for Australia) this increased to 12% in 2001 and 15% in 2006.