Paul Hopgood, Partner
Andrew McCormack, Associate
It has arrived. Following numerous false starts, the De facto Bill amending the Family Law Act to include de facto couples was finalised yesterday and has been forwarded to the Governor General for assent. It is expected that all amendments to the Family Law Act will be in operation by March 2009. The legislation heralds significant change for de facto couples (including those in same sex relationships) and gives rise to many questions for those of us in de facto relationships and even some of us who consider that we are not.
Am I in a de facto relationship?
A de facto relationship is normally defined as two persons (different sex or same sex) living together on a genuine domestic basis.
What does that really mean?
There are a number of criteria that will be used by the Court to determine if someone is in a de facto relationship. These criteria include:
Whether you share a common residence. In the past, Courts have ruled that it is not necessary for you to share a residence and a lot of people may be under the misapprehension that they are not in a de facto relationship as they have separate residences.
The length of the relationship. Usually (but not always) a de facto relationship must have existed for two years. If a child has been born to the relationship or other relevant factors exist you may be able to make a claim even if your relationship did not last two years.
Are you in or did you have a sexual relationship as part of the relationship? It is possible for a de facto relationship to exist even though you may not have an ongoing sexual relationship with the other person.
Whether you own property or have shared finances with the other person. This also includes where the other person may be financially dependant on you or where you contribute significantly to their lifestyle.
Whether other people around you know about the relationship and if you have been considered by other people as a "couple".
Under the new amendments to the Family Law Act, you could be in a situation where you are still married and be in a de facto relationship at the same time.
If you consider that you could be at risk, it is important to seek advice.
My de facto partner and I have already separated. Will we be able to access the Family Court?
The new de facto legislation will automatically apply to those in relationships that break down after the commencement of the amendments to the Family Law Act. Whilst the bill has been passed it has not yet commenced. All things being equal it is likely that the Bill will receive assent by the end of 2008 but some operative provisions of the Bill may not commence until March 2009. If you separate after March 2009, the new rules are likely to apply to you.
If you are already separated and have not commenced property settlement proceedings in a State court, you and your former partner can agree to "opt in" and make use of the new legislation.
Dependant upon your individual circumstances a decision to use the new legislation may benefit or disadvantage you significantly in terms of your ultimate entitlement or the cost of your proceedings. If you have separated or are considering separation it is important that you obtain legal advice as soon as possible.
I have already entered into a cohabitation agreement with my de facto partner. Now that the law has changed, am I protected?
If you entered into a cohabitation agreement prior to the changes to the Family Law Act, your agreement should still be valid. Cohabitation agreements are complex and for them to be binding, they require strict compliance with the relevant legislation. We suggest that you seek advice and have your agreement reviewed by a family law specialist if you have any concerns. For further information contact any member of our family law team or the contacts below.
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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.
