Part VIIIAB of the Family Law Act concerning De-Facto Couples

Part VIIIAB of the Family Law Act 1975 (Cth)

Did you know a new Part has been inserted into the Commonwealth Family Law Act 1975 (“the Act”) which provides unmarried couples with the right to have their financial and property matters settled in a Court exercising jurisdiction under the Act?

Part VIIIAB of the Act has created a simpler and more direct way for de-facto couples to settle their disputes. It provides for those couples who wish to access the Federal Family Law Courts (“the Court”) on property and maintenance matters. Although Part VIIIAB was enacted on 5 December 2008, any de-facto relationship which has broken down before that date may still have the option to take action under the relevant provisions of the Act.

A cause of action may be sought by a party to the de-facto relationship under sections 90SE, 90SM, or Part VIIIB of the Act. An application must be made within two years of the date of separation in order for it to be valid. Section 90SE allows the Court to make an order for maintenance of a party to the relationship in the event of a relationship breakdown. Section 90SM allows the Court to alter the respective parties’ interests in any property of the relationship, and Part VIIIB, which is not a new Part of the Act but has been extended to apply to both married and unmarried couples, gives rights and liabilities with respect to superannuation interests.

Part VIIIAB will only apply to unmarried couples who have been engaged in the relationship for at least two years, or alternatively, there is a child of the relationship. Furthermore, both parties will need to have resided within a ‘participating jurisdiction’ – which encompasses all Australian States with the exception of South Australia and Western Australia – for at least one third of the whole term of the relationship. If this is not the case, the applicant party will need to show either, they made ‘substantial contributions’ to the relationship, or that a failure to make an order will result in a ‘serious injustice’ to the applicant party.

A couple are engaged in a ‘de-facto relationship’ for purposes of this Act if they are not legally married to each other, they are not otherwise related by family, and with regard to all circumstances of the relationship, they are living together on a genuine domestic basis. A de-facto relationship may be between two persons of different or the same gender – there is no discrimination! The Court has discretion to determine whether there is or is not a de-facto relationship in existence before proceedings will commence. If one of the parties to the relationship dies after separation, proceedings may still be commenced or even finalized provided the deceased are legally represented.

De-facto couples may now also be parties to Financial Agreements, which may be drafted prior to, during, or after a relationship breakdown. These Agreements are the same as those which can be created for married couples under the Act. The Agreement will be binding at the point where all parties to the Agreement have signed it. A party to the relationship may not make an application under Division 2 of Part VIIIAB where there is already a Binding Financial Agreement in relation to that matter. Financial agreements may be terminated by the parties to the Agreement or set aside by the Court in certain circumstances.

In summary, unmarried couples now have the benefit of accessing the Family Court which is a specialist court with vast experience and expertise in the area of relationship breakdown. They will have access to procedures and dispute resolution mechanisms which are more suited to handling family litigation arising on relationship breakdown. Among other things, it will save de-facto couples a huge cost now that they can have both their financial and child related matters settled in the one court!