On 25 June 2008 the Family Law Amendment (De Facto Financial
and Other Measures) Bill 2008 (the Bill) was introduced to the
federal parliament. If passed, the Bill will introduce a number of
landmark changes to the Family Law Act 1975 (the Act).
Most notably, the Bill will signal the end of the bifurcated
system that requires de facto couples to resolve financial disputes
in state and territory courts, notwithstanding their ability to
settle parenting matters in the federal court system.
New South Wales, Queensland, Tasmania and Victoria have all
passed legislation referring power to the Commonwealth. Existing
constitutional power enables the Commonwealth to legislate in
relation to the Northern Territory and the ACT.
Currently South Australia and Western Australia are not
participating jurisdictions, but are in discussions with the
Commonwealth regarding their position in relation to the Bill.
The legislation will not apply to parties to a de facto
relationship that breaks down prior to the commencement of the new
provisions. This might mean parties either try and break up earlier
or later, depending upon the benefits of the change of the
legislation. It may also mean that the end point of a relationship
may well be a litigation point, depending upon the benefits.
It's important to note in this regard that NSW's present de
facto legislation does not provide for "section 75(2)
factor" considerations (unlike Part 19 of the Property Law
Applications for maintenance, declarations of property interests
or property settlement must be made within two years of the
breakdown of the relationship.
There are also threshold tests similar to those in present de
facto legislation going to the status of the relationship.
The law is designed to mirror existing financial provisions for
married couples. As a result, all relationship property settlements
will be determined is much the same way and the old distinctions as
to the status of a relationship (or the parties to them i.e. same
sex couples) are designed to be eliminated. Lawyers will be able to
provide greater certainty to clients given that all property
settlements will be dealt with by either the Family Court or the
FMC, courts specifically tasked with that jurisdiction.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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