De facto financial disputes come to the Federal Courts

The latest update from Barry & Nilsson lawyers:


On 25 June 2008 the Family Law Amendment (De Facto Financial and Other Measures) Bill 2008 (the Bill) was introduced to the federal parliament. If passed, the Bill will introduce a number of landmark changes to the Family Law Act 1975 (the Act).

Most notably, the Bill will signal the end of the bifurcated [Barry & Nilsson] system that requires de facto couples to resolve financial disputes in state and territory courts, notwithstanding their ability to [Barry & Nilsson] settle parenting matters in the federal court system.

Participating jurisdictions

New South Wales, Queensland, Tasmania and Victoria have all passed legislation referring power to the Commonwealth. Existing constitutional power enables the Commonwealth to legislate in relation to the Northern Territory and the ACT.

Currently South Australia and Western Australia are not participating jurisdictions, but are in discussions with the Commonwealth regarding their position in relation to the Bill.

Jurisdiction

The legislation will not apply to parties to a de facto relationship that breaks down prior to the commencement of the new provisions. This might mean parties either try and break up earlier or later, depending [Barry & Nilsson] upon the benefits of the change of the legislation. It may also mean that the end point of a relationship may well be a litigation point, depending upon the benefits. It’s important to note in this regard that NSW’s present de facto legislation does not provide for “section 75(2) factor” considerations (unlike Part 19 of the Property Law Act 1974).

Applications for maintenance, declarations of property interests or property settlement must be made within two years of the breakdown of the relationship.

There are also threshold tests similar to those in present de facto legislation going to the status of the relationship.

Substantive Provisions

The law is designed to mirror existing financial provisions for married couples. As a result, all relationship [Barry & Nilsson] property settlements will be determined is much the same way and the old distinctions as to the status of a relationship (or the parties to them i.e. same sex couples) are designed to be eliminated. Lawyers will be able to provide greater certainty to clients given that all property settlements will be dealt with by either the Family Court or the FMC, courts specifically tasked with that jurisdiction.

For more information contact Barry & Nilsson