Commonwealth Family Law System to deal with both Parenting & Financial Matters

Date: Apr 02, 2009
Document Type: Newsletter

For years de facto couples who separated with children faced the nightmare of having to use two different legal systems. Problems about their children were dealt with in the Family Law system, under Commonwealth law, while disputes about financial matters were resolved in State courts. In addition, the entitlements of - usually - females were substantially less than their married counterparts, and superannuation benefits could not be divided.

As from 1st March 2009, that has changed in most states. Except in South Australia and Western Australia, the Commonwealth Family Law system deals with both parenting and financial matters arising from a relationship breakdown, whether the relationship was a marriage or de facto, and whether the relationship was same sex or heterosexual. However unless both parties agree, the State courts will still deal with the financial outcomes where separation took place before March 1st 2009.

Apart from the convenience and economy of only needing one set of proceedings, there are changes which will materially affect the outcomes of a separation. Remember that only a very small percentage of disputes are finally resolved by a judge; the vast majority is settled through mediation or by negotiation, and Family lawyers tend to spend more time negotiating and settling than they do in a courtroom. The new rules will affect all outcomes, not just those imposed by a court.

One very significant change is to the entitlements of a partner who has been primarily a parent and homemaker. A de facto partner in that situation used to get little or no allowance for future needs and responsibilities, compared to a married partner. That has changed, and whether married or not, a homemaker/parent will get a real consideration of future needs and responsibilities when the appropriate asset division is assessed.

A split of one partner's superannuation to the other is now permissible. Previously even if the parties wished to split superannuation, it was not legally possible.

The law specifically provides that someone may be both married and in a de facto relationship, and also may be in more than one de facto relationship. If a court is trying to deal with the proper outcome in such a case, the other partner's rights and entitlements will have to be assessed, and so a case could involve several partners, not just two.

Just as in a marriage, de facto couples can enter into binding financial agreements, before, during or after a relationship. There are formalities to be complied with, and there are some circumstances where an agreement can be set aside by a court, so expert advice is, as always, most advisable.

De facto claims must normally be made within two years of the end of the relationship, although a court can extend this if seen appropriate. To qualify to make a claim, the law requires either:-

  • A total two year relationship, although that time does not have to be continuous,
  • A child of the relationship,
  • Where the claimant has made substantial contributions, and serious injustice would result if a claim was not allowed, or
  • The relationship was registered where a local law provides for registration.

These are significant changes, so if you are unlucky enough to face problems yourself, don't rely on gossip, get advice from those who know what they are talking about!

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