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Review of legislation regarding de facto relationships 2008 |
In recent years the Australian government has recognized that there is one significant gap in the family law system, which is its coverage of approximately 10 per cent of couples who choose to live in a de facto relationship. On 25 June 2008 the federal parliament introduced The Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 (“the Bill”) which will amend the Family Law Act 1975. The Bill is designed to allow both heterosexual and same-sex de facto couples in most states and territories to access the Family Court in relation to property and financial matters in case of a breakdown of their relationship.
Currently de facto couples have to present their case before State Courts in relation to property and the federal Family Court in relation to children, which makes the breakdown of the relationship more prolonged and costly which can be taxing on the parties, both emotionally and financially. The new Bill 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 Family Court is considered to be the most appropriate institution for resolution of property and maintenance disputes between de facto couples as they have the requisite experience and expertise in relationship matters. Currently, State and Territory laws on property and financial matters for de facto couples vary between jurisdictions, which means couples in different States and Territories have different rights. The Bill seeks to eradicate these disparities and bring about uniformity.
The alternative dispute resolution processes (such as mediation and conciliation) adopted by the Family Court have traditionally been effective in resolving the vast majority of disputes at an early stage, avoiding the need for litigation.
In assessing the parties’ (and the children’s) future needs the court may need to divide superannuation contributions between parties and while the Family Court has powers to do so, State courts cannot divide superannuation funds.
Currently in Victoria the law is confined to dividing the property on the basis of the past contributions of the parties. There is no additional component to take account of future needs of financial resources. The proposed federal regime focuses on both past contributions of the parties and their future needs to ensure that primary caregivers have access to resources necessary to care for children on a long-term basis. Therefore, the Bill is expected to benefit children’s rights
The Bill outlines the criteria for determining whether there was a de facto relationship in existence. In making such an assessment the court may consider a number of factors (ie the duration of the relationship and the degree of mutual commitment to shared expenses, among others).
The Bill also creates a new “de facto financial cause” which allows parties to initiate proceedings for distribution of property or financial resources (including superannuation) and proceedings for provision of maintenance between parties to a de facto relationship and proceedings involving binding financial agreements. It gives the court broad discretionary powers to make an order for maintenance for a party to a relationship “as it considers proper”.
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