Since the amendment of the Family Law Act allowing defacto couples to bring applications for property adjustment in the Family Court, because those amendments only apply to couples who separate after the commencement of the new provisions (on or after 1 March 2009), the current State and Territory Laws will remain relevant for some time.
The effect of these amendments is significant. The new provisions make the registration of a defacto relationship as sufficient grounds to start a case regardless of the length of the relationship with Victoria and now, as at the 19 May this year, New South Wales, being States in which a relationship can be registered.
A homosexual couple living in these States can have a public ceremony and an official document to mark their union, separate within months and potentially have claims on each other, based on their contributions and future needs. Accordingly, in some States, Australia already has in effect gay marriage without the Federal Government or current opposition needing to change their current policies of marriage being between a man and a woman.
Before the Court can make any orders dividing defacto couples property, it must first make a declaration as to the existence of the defacto relationship in the first place. The Court has power to declare various matters to satisfy qualifying conditions for a property adjustment including:
- The period or periods of the defacto relationship.
- Whether there is a child of the relationship.
- Whether one of the parties to the defacto relationship made substantial contributions.
- When the defacto relationship ended.
- Where each of the parties to the relationship was ordinarily resident during the relationship.
A significant consequent of the changes to the Family Law Act is that any party to proceedings can apply for a declaration which could including a third party during proceedings between a married couple. The other person can apply for property adjustment orders by reasons of a defacto relationship with one of the partners to the marriage and seek a declaration that the defacto relationship exists.
The changes to the Legislation allows parties to a defacto relationship to seek orders for the maintenance of one or other of the parties and property adjustment orders. The provisions applying to defacto relationships are all but identical to those that apply for married couples.
On the 1 March 2009 superannuation splitting also became available to these defacto couples which is not available for defacto relationships that still come within the State Legislation.
Binding Financial Agreements are also available to defacto couples with the Legislation also making allowance for existing State agreements made prior to the beginning of the relationship or prior to separation, deeming them to be financial agreements under the Family Law Act.