Same-sex family law changes explained

Same-sex family law changes explained

What are these changes all about?
The amendments are part of a raft of federal and state government reforms aimed at equalising de facto (including same-sex) relationships with marriage. At present, resolving de facto financial matters under state/territory laws is costly, complex and cumbersome, and the laws differ all around Australia.

The reforms will ensure that de facto couples will be in the same position, as far as possible, as married couples under the Family Law Act 1975. This will remove discrimination against de facto couples, by enabling them to resolve their financial and parenting issues in the family law courts, using nationally consistent processes.

Who will be covered by the new laws?

For federal family law to apply, these tests have to be met:
It will be essential to establish (or agree) that a de facto relationship existed before the new laws apply. Broadly, this means having a relationship as a couple living together on a genuine domestic basis, but all the circumstances of the relationship will need to be considered -” whether and how long you lived together, the degree of financial dependence, how you shared your finances, and the public appearance of your relationship. It is a strong factor if your relationship is registered under state laws. Carer relationships that are not de facto relationships will continue to be covered by state law.

The relationship lasted for two years in total before breaking down -” there are exceptions if there is a child of the relationship, or in hardship cases, or for registered relationships (but you will still need to show you had a de facto relationship).

The application was brought within two years after the end of the relationship -” there are some exceptions to this time limit.

If the case has a primary connection with South Australia or Western Australia, the federal laws may not apply, as those states have not referred powers to the federal government. (This will change if those states later come on board).

What choice do we have about applying federal or state laws to our financial settlement?
If these tests are met, your case will be covered under federal family law -” there can be no dual operation of state law and federal law, and you cannot opt back into state law. (You are not required to do anything about property settlement or spousal maintenance after relationship breakdown, even if you do come under the new laws, but the family law remedies and procedures will be available to finalise your financial issues by agreement, or to determine a dispute).

However, if your de facto financial matter is not picked up under federal law (perhaps the relationship broke down before the new laws came into effect), you can opt in to the federal scheme by consent. Under these opt-in provisions, you can also agree to transfer your pending state case or your current financial agreement across to federal family law.

If your case would be covered by federal family law (and even if it remains covered by state law), you can agree to disapply the operation of the law and apply your own terms of settlement in the event of relationship breakdown, by entering into a binding financial agreement under the relevant law.

Why would you want to opt in?
For all the advantages offered to de facto couples generally under federal family law -” super splitting is available; the family law process is more equitable, efficient, and better at conciliating these disputes on relationship breakdown; and parenting and financial matters can be worked out in the same legal process. It is hard to speculate, but there are likely to be cost savings for litigants, particularly when the law becomes more settled and outcomes more predictable.

Will de facto cases be treated differently under the new federal family law?

The same laws now apply to married couples for working out family property settlement, super splitting and spousal maintenance will apply to de facto couples who are covered by the Act.

Even if the Act applies, the outcome will vary from case to case, as the family law scheme is a discretionary assessment of contributions and other relevant factors. There is no automatic 50/50 split under state or federal law -” a fair result should reflect the facts of the case.

However, the federal family law system has some important differences in principle from state and territory law, so outcomes will be different for cases now covered by federal family law, to this extent: Super splitting has not been available in any state or territory, but will now be available under federal family law, so long as this is an appropriate outcome on the facts in NSW and Victoria. Future needs of each party will come into consideration when working out a property split this has been absent from state legislation

In SA, Queensland and Victoria, spousal maintenance remedies have not previously been available, but will now apply in some specific and limited circumstances under federal law.
When are the changes happening?

The amendments -” the Family Law Amendment (De Facto Financial Matters and other Measures) Act 2008 -” will come into effect on Proclamation, which could be early in 2009. Check news reports, or online at http://www.aph.gov.au/bills

info: Lee Galloway is a specialist family lawyer who was primarily responsible for developing these amendments while working with the Federal Attorney-General’s Department. She returns to family law practice with King Street Lawyers in Newcastle in February 2009, where she will continue advocacy in complex and challenging areas of family law practice, many of which affect same-sex couples. This is offered as a general introduction to these reforms. Please seek out specific, specialist family law advice about your matter if in doubt.

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3 responses to “Same-sex family law changes explained”

  1. Many thanks for taking the time to respond, as I understand these laws are currently being scrutinized by the Family First Party causing a delay here in South Australia. Have studied proposed legislation via austlii website and expect WA not to jump on the wagon in the near future. Uniformity would indeed be a marvelous thing, disappointingly I have noted that the Family Court of Australia have been slow to adopt change one example being Peter Duncan’s efforts in the presumption towards joint parenting.
    Many Thanks Again!
    Happy litigation

  2. Mike – After the changes come into effect (probably in early March 2009 now), they will not apply to de facto relationships that broke down before that start date. Those matters will continue to be covered by State and Territory laws in the same way as they do at present. However, as I mentioned, these couples can ‘opt in’ to the new provisions, and consent to have the new federal laws apply. So, for example, this couple could agree to resolve their financial affairs under the principles of the new federal de facto law, and file consent orders in the federal family courts to finalise their property arrangements. There would be cost savings in the process. If they don’t agree, the relevant State/Territory laws apply. Lee Galloway

  3. If a relationship breaks down lets say September 2008 and no legal action has commenced whatsoever, will these laws be retrospective or can be applied.