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Family Law Act 1975 (Cth)
Federal Magistrates Court
Property Division When De Facto Relationships Break Down
- Fact Sheet from the Attorney-General's Department
New provisions in the Family Law Act 1975 (Cth) now provide separated de facto couples the ability to access provisions in the Family Law Act 1975 (Cth) dealing with the division of property and the payment of spousal maintenance. The new laws apply to couples whose relationship broke down after 1/03/09, the date when the new laws commenced.
De facto couples who separated before the 1/03/09 need to still use State or Territory laws (Relationship Act 2003 in Tasmania), although they can choose to have the new laws apply to them. Couples who have obtained final court orders about their property or for payment of spousal maintenance under a State or Territory law cannot choose to apply the new laws. Neither can couples who have made a written agreement binding courts on those matters under State or Territory law, except where the agreement has ceased to have effect without property being distributed or maintenance paid.
Written agreements binding courts that couples made about their property or spousal maintenance under the Relationships Act 2003 before 1/03/09 continue to apply.
A de facto relationship is a relationship that two people who are not married or related by family have as a couple living together on a 'genuine domestic basis'. A de facto relationship can exist between 2 persons of different sexes and between persons of the same sex.
All the circumstances of the relationship will determine whether a couple have a de facto relationship. These are defined in s.4AA(2) of the Family Law Act 1975 (Cth) and include:
Parties must apply to a Family Court within two (2) years of the end of their de facto relationship for property or maintenance orders. In limited circumstances, the court may grant leave to make an application after the end of that period.
Parties to a de facto relationship may enter a financial agreement before commencing a de facto relationship, at some time during the relationship or when the relationship breaks down to formalise any property or maintenance arrangements made between them. A financial agreement may contain details of how, in the event of a breakdown in the relationship, the property or financial resources of either or both parties is to be dealt with, the maintenance of either of the parties of the relationship and how superannuation interests will be divided.
To be binding a financial agreement must be signed by the parties, must contain a statement that prior to signing each party received independant legal advice and a certificate signed by the legal practitioner who gave that advice, the agreement has not been terminated and has not been set aside by a court.
A partner of a de facto relationship may apply to the court for an order adjusting the interests in the property of the partners.
In making an adjustment order for property, the court will take into account a number of factors including both partners contributions to the relationship (financial and non-financial), the financial resources of both partners and the nature and length of the relationship.
In proceedings for an adjustment or maintenance order, a court is to make an order that will finally determine the financial relationship between the partners and avoid further legal proceedings between them.
A partner in a personal relationship may also apply to court for a spousal maintenance order. A court may make such order as it considers proper for the maintenance of one of the parties to the de facto relationship.
A court may make a maintenance order if it is satisfied that the partner applying for maintenance is unable to support him or herself adequately because they have the care and control of a child of the de facto relationship who is under 18 years of age, or their earning capacity has been adversely affected by reason of age or physical or mental incapacity for appropriate gainful employment, or any other adequate reason.
In making a maintenance order, a court will disregard any entitlement of the party whose maintenance is under consideration to an income-tested pension or benefit.
A maintenance order will cease to have effect if either partner dies, or if the partner in whose favour the order was made marries.
Wednesday, October 14, 2009