It's Not Just a "New Mistress Law": Family Law Act Now Applies to De Facto Marriage and Same-Sex Relationships
15 April 2009
On 1 March 2009, new Commonwealth laws for spousal maintenance and the division of property for people in de facto relationships came into force. The Commonwealth Family Law Act 1975 now applies to both married and de facto couples as well as same-sex couples. Previously, de-facto relationships were covered by State Laws and disputes between de-facto couples were determined by State Courts such as the Supreme Court and County Court- Such disputes are now within the jurisdiction of the Family Court of Australia and the Federal Magistrates Court, as are disputes concerning children of all relationships.
The media has focused on a relatively minor aspect of the new laws referring to "mistress laws". Whilst "mistresses" in some limited circumstances may gain some rights, the main purpose of the legislation is to bring the rights of de-facto couples into line with the rights of married couples.
What is the effect of the new De Facto laws?
The new laws allow de facto couples, when they separate, to apply for property settlements based on the same principles which apply to married couples under the Family Law Act 1975.
The Family Law Courts have the power to order a division of any property that the couple own. Superannuation entitlements can also be split and spousal maintenance orders can be made requiring a former de facto partner to pay maintenance to the other where that other partner has no capacity to support herself/himself.
The Family Law Courts can make these orders if any of the following scenarios apply:
the period (or the total of the periods) of the de facto relationship is at least 2 years
there is a child of the de facto relationship
one of the partners made substantial financial or non-financial contributions to their property or as a homemaker or parent and serious injustice to that partner would result if the order was not made, or
the de facto relationship has been registered in a State or Territory with laws for the registration of relationships.
A court has the power to make "such order as it considers proper for the maintenance of one of the parties to a de facto relationship". Section 90SF of the Family Law Act 1975 provides that an Order for maintenance must only be made to the extent that the payer is reasonably able to do so and only if the payee is unable to support himself or herself whether:
by reason of having the care and control of a child of the de facto relationship who has not attained the age of 18 years; or
by reason of age or physical or mental incapacity for appropriate gainful employment; or
for any other adequate reason.
What is the definition of a "de facto relationship"?
A de facto relationship is defined in Section 4AA(1)of the Family Law Act 1975 as a relationship between two people who live together on a genuine domestic basis, whilst not legally married or related to each other. It can exist between two people of the opposite sex, or between two people of the same sex.
All the circumstances of the relationship will be considered when determining whether a de facto relationship exists. These include:
the duration of their relationship
the nature and extent of their common residence
whether a sexual relationship exists
the degree of financial dependence or interdependence, and any arrangements for financial support, between them
the ownership, use and acquisition of their property
their degree of mutual commitment to a shared life
whether the relationship has been registered, in a State or Territory with laws for the registration of relationships
the care and support of children, and
the reputation and public aspects of their relationship.
In which States and Territories do the new laws apply?
Currently, the new laws only apply to couples ordinarily resident in New South Wales, Victoria, Queensland, Tasmania, the Australian Capital Territory, the Northern Territory or Norfolk Island at the time when their de facto relationship broke down. (Residents of South Australia and Western Australia are not yet covered but may be in the future.)
Alternatively, the new laws will also apply where court orders are sought if:
the couple were ordinarily resident in one or more of those States or Territories during at least one third of their de facto relationship, or
the party applying for the order made substantial financial or non-financial contributions to property or as a homemaker or parent in one or more of those States or Territories
provided that one of the parties is ordinarily resident in one of the States or Territories when the application to the court is made.
Do the new laws apply to the Breakdown of All De Facto Relationships?
No, the new laws apply only when the relationship breaks down on or after 1 March 2009. Any Court Application must be made within 2 years of separation. However, in exceptional circumstances, a court may grant leave to make an application out of time.
For people whose relationship broke down before 1 March 2009, State Laws continue to apply. However, if both parties agree after each having obtained independent legal advice, they can opt in to be covered by the new laws. The choice to opt in must be in writing and each party's lawyer must provide a certificate to confirm that the independent legal advice was given.
Opting out of the new De Facto laws
If a couple wishes to willingly opt out of the new laws so that they do not apply to their relationship, they are able to make a Financial Agreement under the Family Law Act in the same way that married couples can. A Financial Agreement (sometimes referred to as a Binding Financial Agreement) can cover arrangements for Division of property, split of Superannuation and maintenance in the event of a relationship breakdown. Such Financial Agreements can be made before entering into a relationship, during the relationship or following the breakdown of the relationship. Due to the fact that a Financial Agreement results in the substitution of a person's rights under the Family Law Act, stringent legal requirements apply and each party must be independently represented and advised by a separate lawyer.
Does a "Mistress" have Rights to Maintenance and Property Settlement?
The media has created great public interest with sensational headlines such as "Love Rats Cash Trap" and "Mistresses to Cash In on De Facto Laws". So, will mistresses be cueing up to institute legal proceedings? Before the Family Law Courts can exercise jurisdiction, the mistress must prove that she was in a de facto relationship (defined above) and the legislation requires that all the circumstances be taken into account.
For example, in the following scenario, the relationship between Randy and Misty would probably come within the definition of de facto relationship:
Randy, aged 65, is the CEO of a National Company. He is married to Brigid, aged 55, with whom he has two teenage children. The family home is in Brighton. The national company head office is in Sydney and Randy usually works at the head office from Tuesday to Friday staying in Sydney during that period. Randy first met Misty at The Love Rat Nightclub fifteen years ago and Randy has been spending all of his spare time with her when he is in Sydney. Misty is now aged 54. She has never worked and is studying Fine Arts part-time. Randy and Misty sleep together, go out to dinner together and go to both private and business social functions together. Ten years ago, Randy purchased a run-down art deco penthouse apartment in Double Bay. Randy pays all the expenses for that apartment. Misty lives in the apartment full time and Randy lives there when he is in Sydney. Misty does not work as she is supported by Randy. Misty spends her time, preparing gourmet dinners for Randy, arranging soirees for his business associates and refurbishing and decorating the art deco apartment. Randy decides to end his relationship with Misty.
In the above circumstances, Misty would probably have an entitlement to a property settlement and maintenance. However, if we change the circumstances so that Randy and Misty only met a year and a half ago; the apartment was already fully restored and furnished before Misty arrived on the scene; and Misty had her own separate income from her own business- then, Misty would probably not be entitled to anything.
The issues in this type of case, like all other family law cases, will depend on the particular facts of the case under consideration.
Should I change Family Lawyers in my Family Law Court Case?
18 January 2019 -
Are you having doubts about whether you are being well-represented in your Family Law dispute?
Is now a good time to finalise a Family Law Property settlement?
19 December 2018 -
It is December 2018. After many years of rising property prices in Melbourne and the rest of Australia, property values have fallen. The Australian and US share markets are also down. Separating couples now have assets (including Superannuation) which are valued at significantly less than the valuation a year ago. However, their debt level would often be at the same level. The net result of this is that there is significantly less to divide up.
Can we agree on a Family Law settlement without going to Court?
25 October 2018 -
Can we agree on a Family Law settlement without going to Court? This is a question asked by many clients at Melbourne Family Lawyers. The answer is both yes and no.
Should I Separate Before my Rich Parent Dies to Preserve my Inheritance?
12 April 2018 -
If your marriage or relationship is on the rocks and you are agonising as to whether to separate from your spouse or partner, then here is some advice which may spur you on to make a decision one way or the other.
When Can I make a Claim for Property Settlement as a De Facto Partner?
18 July 2017 -
In Australia, the Family Law relating to De Facto partners is substantially the same as the law relating to people who are legally married. The Family Law Act covers married people and de facto couples, including those in homosexual relationships.
When should I apply for a Family Law Property Settlement?
18 August 2016 -
The only legal rules about when you should apply for a Family Law property settlement are concerning how late you can apply. People in a De Facto relationship have up to two years after separation. Married people have up to one year following the Divorce. Contrary to a popular belief, you do not have to wait until you are divorced to have a property settlement.
When is Spousal Maintenance Payable?
31 August 2015 -
Spousal Maintenance (also called alimony in some countries) may be payable in Australia by one spouse (or de-facto partner) to the other under some circumstances pursuant to the provisions of the Family Law Act.
The Best Family Law Advice from Melbourne Family Lawyers
20 July 2015 -
At Melbourne Family Lawyers, we don’t offer a “free” first consultation and use it to market our services to you. The first meeting with one of our lawyers is scheduled for one hour because we know it will take a bit of time to listen to your story so that we can understand your situation and what is important to you and what you would like to achieve.
Is my Spouse entitled to a share of my Superannuation if I separate?
20 January 2015 -
In a Family Law Property Settlement, Superannuation is always taken into account when considering a division of property between spouses (including de facto or same-sex partners). These days, most people have Superannuation entitlements. Whilst those Superannuation entitlements may not be readily accessible now if you are below retirement age, they will make a difference to your financial situation when you do retire.
If I win Tatts Lotto, do I have to share the winnings with my ex spouse?
10 December 2014 -
This question sometimes arises in family law property settlement cases- and the answer will depend on the exact circumstances. As is usual in family law cases, there are many possible scenarios and many different possible results. Let’s consider a few examples.
Beware of Family Lawyers offering Free Initial Consultations
26 November 2014 -
Have you come across the recent advertising from Family Lawyers offering “free initial consultations”? Have you stopped to think why those lawyers are doing that?
Do I get to keep my inheritance in a Family Law Property Settlement?
30 October 2014 -
It is important to remember that every Family Law Property Settlement case is different and will be decided in accordance with the guiding principles in the Family Law Act and the case law arising from past decisions of the Family Law Courts. This article summarises some of those guiding principles.
Achieving a Family Law Property Settlement with a “Bully” Spouse
27 February 2014 -
Bullying is characterized by an individual behaving in a certain way to gain power over another person- and this is often a problem in marriage or relationship breakdown situations.
How to Achieve a Fair Family Law Property Settlement?
6 January 2014 -
Achieving a fair Family Law Property Settlement is the aim of most people who end up separating, but what is fair? It is very difficult for a person to work out what is fair when going through the emotional turmoil of a separation. An experienced Family Lawyer can help you.
What to Expect from a Family Lawyer
8 November 2013 -
A Family Lawyer will advise you as to his or her opinion as to where you stand when applying the applicable Family Law to your particular situation. However, a Family Lawyer will never be able to provide you with a definitive outcome in your case as the outcome of your case will depend on the following.
Which Family Law Court in Melbourne?
8 April 2013 -
Clients are sometimes confused about which Family Law Court is appropriate to hear their case in Melbourne. This is understandable as there are three separate courts on the same street in Melbourne which have jurisdiction on Family Law related issues.
Achieving a Fair Family Law Settlement for De Facto and Same Sex Couples in Victoria
15 March 2013 -
The Family Law in Victoria is now almost exclusively governed by the Family Law Act (Commonwealth) whether you are married, or in a de facto or same sex relationship. The State of Victoria previously had the power to make laws concerning couples who were not married, but referred those powers to the Commonwealth Government in 2009.
Finding the Best Family Law Firm in Melbourne
15 January 2013 -
So your spouse has just announced, "It's over!" and you need to find a law firm to help guide you through one of the most stressful situations you are going to face. Where do you start? Do you go back to your local conveyancing law firm who looked after the purchase of your home?
Social Networks - a Divorce Lawyer’s Nightmare or Dream- depending whose side you are on!
11 April 2012 -
Watch Out- Social Networks- A Divorce Lawyers Nightmare (or Dream) What you say on FaceBook or Twitter may well end up as evidence in the Family Law Courts!
Collaborative Family Lawyers - What Women (and Men) Want!
10 August 2011 -
Marriage is a strange phenomenon that happens to human beings. And the best part is, both the unmarried and the married are unhappy, though for radically opposite reasons, one for not being married, and the other for being married.
Family Court Pre Action Procedures
9 March 2009 -
Family Law Disclosure Rules
22 January 2009 -
A direct extract from Family Law Rules- Parts 13.1 and 13.2
Talk to us now for advice about your situation by phoning (+61) 03 9670 9677