Australia: New De Facto Laws: Looking At The ‘Myth-Conceptions’

The amendments to the Family Law Act that came into effect on 1 March 2009 have received much media comment. The Daily Telegraph article "New de facto laws mean cheats no longer prosper" by Nick Leys is just one of the numerous press articles which has unfortunately raised more myth-conceptions about the new legislation.

I will attempt to explain some of the 'mythconceptions'.

1. The 'new' laws leave cheating husbands open to divorce-style litigation from their mistresses, who can now claim income maintenance, property and even superannuation funds.

The amendments to the Family Law Act have (for some reason known only to the press media in this country) been dubbed 'mistress laws'. This is a complete distortion of the truth. The amendments to the Family Law Act now allow for a uniform system of dealing with de facto relationships.1 The amendments allow de facto couples (regardless of their sex) to deal with property settlement claims in the same Courts as married couples. This is a vast improvement on the previous system, which differed from state to state and did not offer any consistency in how matters were determined.

The amendments allow for maintenance claims to be made and for property to be divided including superannuation entitlements. Previously, most state based de facto laws precluded a member of a de facto couple from making a maintenance claim. Superannuation could only be divided between married couples as state laws did not have the power to split superannuation.

For a person to make a claim under the new amendments, they must be able to show that they meet the criteria for a de facto relationship, that is, they have lived with the other person in a genuine domestic relationship for at least a period of two years, have made substantial contributions to property or financial resources that it would be inequitable not to recognise or there is a child or children born to the relationship.

The current myth that a 'mistress' may be able to make a claim is just that – a myth. A Court must look at a relationship and determine whether or not a genuine domestic relationship exists or whether any other criteria can be established to bring a relationship into the jurisdiction of the family law courts.

2. The main objective is to remove same-sex discrimination from the family law court system, but they have left the door open for a raft of de facto relationship claims.

The main objective of the amendments was to provide a uniform and consistent approach to resolving property and maintenance entitlements for de facto couples, regardless of their sexual orientation. The amendments have been on the cards since at least 2003 when a number of states (most notably New South Wales, Queensland and Victoria) passed legislation referring their powers to the Commonwealth government. Draft legislation taking up these powers was drafted by the Howard government but the legislation never made it into Bill form to be debated by the Parliament.

3. There is now no such thing as a hidden mistress any more.

Quite frankly there never has been. There has never been any bar to a person (married or single) from being the subject of a de facto relationship claim. There have always been criteria about what constitutes a de facto relationship. It has never been a defence to a de facto relationship claim that a person could not be in a de facto relationship because they were married. In fact, there is authority for the proposition that a person could be in multiple de facto relationships as well as being married at the same time.2

Professor Patrick Parkinson has cited the example of a business man who has a wife but also 'keeps' another woman by providing her with an income, a place to live and spends time with her under the same roof. It is a matter for the family law courts to determine whether a genuine domestic relationship exists by applying the criteria set out in the Family Law Act.

4. Young people living together to save rent (or for other reasons) might find themselves subject to de facto relationship claims.

Again, this is a distortion of the legal position. It is highly unlikely that two people who live under the same roof who are not considered to be in a de facto relationship (by reference to the criteria provided in the Act) will have a claim under the legislation.

5. The new laws will also render void many prenuptial agreements.

This remains to be seen and will need to be tested by the family law courts. Parties who have entered into financial agreements under existing legislation will not automatically have their agreements torn up. It is completely irresponsible for legal practitioners to say this and thereby create panic among people who have entered into these agreements. Criteria already exists under both state and Federal laws about whether these types of agreements can be set aside. This includes where an agreement has been obtained by fraud or duress. A court can consider whether an agreement should be set aside and this is a fairly difficult bar to jump over.


1 It should be noted that South Australia is presently sitting on the fence in respect of the laws and is yet to make a decision as to referring the state's powers to the Commonwealth. Western Australia has always dealt with de facto property and maintenance matters in the Family Court of Western Australia.

2 Green v Green (1989) 17 NSWLR 343

© HopgoodGanim Lawyers

Australia's Best Value Professional Services Firm - 2005 and 2006 BRW-St.George Client Choice Awards

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