In this paper I provide a snapshot of the development of de facto relationship law and then examine some of the practical issues confronting practitioners particularly in Queensland and New South Wales as we brace ourselves for the introduction of the Commonwealth legislation that will govern future financial disputes and agreements in de facto relationships.
My colleague Andrew McCormack has undertaken a detailed review of the authorities in Queensland and New South Wales in respect of the vexed, threshold issue of what exactly is a de facto relationship. Andrew has also touched upon some of the matters which I now turn to in more detail.
Much to the chagrin of persons entering de facto relationships or in subsisting relationships who have made the conscious decision not to marry: whilst de facto relationships may be lacking in the fan fare` of a wedding on the way in, we expect the introduction of the Commonwealth legislation will ensure they will receive the same treatment by the Family Law Courts when they part company.
Whilst the Commonwealth legislation stands to tighten the vice grip on financial outcomes upon a breakdown of a de facto relationship and will provide:
i. uniformity across Australia in the remedies available;
ii. uniformity in the Court’s approach; and
iii. to a certain extent will remove the current vagaries of advising a client:
at the moment whilst awaiting the introduction of the legislation, we have some business in assisting clients who have not entered agreements or commenced litigation in State Courts. A proactive practitioner will assist their client to make the strategic call to commence proceedings to avoid the impact of the Commonwealth legislation or to wait and take advantage of the Commonwealth legislation.
We need to be aware of the advantages and disadvantages of both systems to be able to give our clients an informed choice.
We already know half the equation and upon the release of the exposure draft of the Commonwealth legislation we will have the full picture. At the moment we are no better advanced than in December 2002 when Neil Jackson wrote his article "The Devil is in the Detail"36, postulating just what might be contained in the Commonwealth legislation upon the referral of powers from State to Commonwealth happening.
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