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Family Law Act now covers parties in de facto relationship

The Family Law Act has been amended to provide that parties in de facto relationships, whether heterosexual or same sex, who separate after 1 March 2009, will have their property and maintenance matters dealt with under the Family Law Act (although certain exceptions apply). Parties in de facto relationships whose relationships break down before 1 March 2009 can "opt in" to the new regime.

In assessing whether parties are in a de facto relationship, the Court must have regard to a number of different factors, e.g. the duration of the relationship and whether the relationship was registered. The Family Law Act treats property settlements between de facto couples in a similar matter to the way that it treats property settlements between married couples and it allows parties in de facto relationships to split their superannuation entitlements.

Couples in de facto relationships must also comply with at least one of four gateway requirements, i.e.:

  • The relationship must be of at least two years duration; or
  • There must be a child of the relationship; or
  • The relationship must be registered under a prescribed law of a state of territory; or
  • A party must have made substantial contributions and a failure to make the order or declaration would result in serious injustice to the applicant.

Parties in de facto relationships whose relationship breaks down after 1 March 2009 and those whose relationship breaks down prior to that date but who opt in, will be able to issue proceedings in the Family Court or the Federal Magistrates' Court, whereas previously they had recourse only to the state Courts. The Family Court and the Federal Magistrates' Court are more accessible and less costly than the state Courts.

Parties in de facto relationships or considering entering into a de facto relationship can enter into a Financial Agreement to oust the jurisdiction of the Family Law Act and set out how their assets will be divided in the event of a breakdown of the relationship. A Financial Agreement can also set out what, if any, maintenance is to be paid by the parties. Parties in a de facto relationship or considering entering into a de facto relationship should give serious consideration to entering into a Financial Agreement to protect their assets and to provide them with certainty in the event of a relationship breakdown.

Published July 2009


For further advice or assistance

Contact Wendy Chennell on 5337 0255 or wchennell@nevetts.com.au or
Contact Bryarne Weir on 5366 3807 or bweir@nevetts.com.au

The information in this publication or on this website is of a general nature only. It is not, nor is it intended to be, legal advice. You should consult a lawyer for individual advice about your particular circumstances.
The information on this website is of a general nature only. It is not, nor is it intended to be, legal advice. You should consult a lawyer for individual advice about your particular circumstances. Nevett Ford do not warrant that information contained in links to third party sites are correct and accept no responsibility for the accuracy and reliability or any other matter in relation to a third party site.