Legislation has been introduced into parliament that, if passed, would amend the Family Law Act 1975 to allow de facto couples (heterosexual and same sex) to access the federal family law courts for property and maintenance matters.
The explanatory memorandum for the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 (“the Bill”) states that “the primary objective of the Bill is to extend the financial settlement regime under the Act to parties to a de facto relationship … The Bill will offer de facto couples covered by the Bill a nationally consistent financial settlement regime, to minimise jurisdictional disputes and uncertainties that sometimes impede settlement of these matters under State and Territory law. The Bill will also offer these de facto couples access to the family law system for determination of their financial matters arising on relationship breakdown. ”
Currently, whilst both de facto and married couples are able to access the federal family law courts for child-related proceedings, only married couples have the right of access for property and maintenance matters. De facto couples must instead go to their State and Territory courts, which are not as experienced as family law courts in dealing with relationship matters.
The Federal Attorney-General, Robert McClelland, has stated that such duplication for de facto couples “wastes time and money and places an unnecessary administrative and financial burden on [them]”. The new Bill, as noted in its explanatory memorandum, will enable “one court exercising jurisdiction under the Act, such as the Family Court of Australia or Federal Magistrates Court, to deal in the one proceeding with both financial, property and child related matters arising between separated de facto couples”.
The Bill will also provide consistency. Existing State and Territory laws on property and financial matters for de facto couples vary between jurisdictions, resulting in, as McClelland notes, couples in different States and Territories having different rights.
The reform has the support of the Law Council of Australia, who is “pleased that the rights of these couples will now be able to be determined in specialist courts on a nationally consistent basis throughout the country”.
The new Bill relies on States referring their powers to the Commonwealth in accordance with ss 51(xxxvii) of the Constitution. The legislative amendments will only apply to the de facto couples whose relationships break down after the amendments commence in the States that have referred their powers to the Commonwealth and in the Territories (and whose relationships break down after the amendments commence).
There appears to be little resistance from the States in respect of such a referral of powers, with NSW Attorney-General John Hatzistergos noting that the Standing Committee of Attorneys-General agreed to reform on the issue at a meeting in 2002. Currently, NSW, Victoria, Queensland and Tasmania have enacted legislation which allows the referral. The explanatory memorandum explains that “[t]hese State referral Acts are expected to come into effect on proclamation, which is expected to be timed with proclamation of the commencement of the operative amendments in Schedule 1 to the Bill.”