For many years de facto couples who separated with children faced 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 in financial cases were less generous for a financially disadvantaged party than in marriage cases, and superannuation benefits could not be divided.
Except in South Australia and Western Australia, the Commonwealth Family Law system now 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 opposite sex. However unless both parties agree, the State courts will still deal with the financial outcomes where separation took place before 1 March 2009.
Apart from the convenience and economy of only needing one set of court proceedings, there are changes which will significantly affect the outcomes after a separation. Only a very small percentage of disputes are finally determined 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 litigating 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 party who has the primary care of children after separation. 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 party with the primary care of children will get an additional share of the net assets to take account of future needs and responsibilities.
A split of one partner's superannuation to the other is now possible with de facto relationships. 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, all the parties entitlements will have to be assessed, and so a case could involve several parties, and 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 that have to be complied with, and there are some circumstances where an agreement can be set aside by a court. Expert advice is, as always, strongly 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:-
- There actually was a de facto relationship
- The relationship was at least of two years duration, although that time does not have to be continuous; or the was a child of the relationship; or where the claimant has made substantial contributions, and serious injustice would result if a claim was not allowed,
- A substantial proportion of the relationship occurred in a State or Territory where de facto claims are dealt with under the Family Law Act..
For assistance with Family Law matters, phone Dominic Wilson, Managing Partner of Craddock Murray Neumann, on (02) 82684000. We have Family Lawyers who are certified by the Law Society of New South Wales as Accredited Specialists in Family Law.