The De Facto Financial Matters and Other Measures Act came into effect on 1 March 2009.
Prior to that, the rights of de facto parties were governed by State legislation. The introduction of the new legislation to the Family Court, which is a federal legislation, gave extra powers to the powers that de facto couples had under the State legislation.
To bring an application in the Family Court, either party must be an Australian citizen, ordinarily resident in Australia or present in Australia on the day the application is filed. If the parties do not fall within these definitions, then the Family Court does not have jurisdiction to hear the matter.
If there was a breakdown of the relationship prior to the introduction of the federal legislation, then those matters are still dealt with under the state jurisdiction.
There are no definite criteria for establishing a de facto relationship. The court can take into account any matters that it considers relevant to the determination. The legislation does provide some guidelines and factors which the court can take into consideration, but this is not a complete guideline to establish a de facto relationship. The factors which can be taken into account are:
- the duration of the relationship;
- the nature and extent of the common residence of the parties;
- whether or not there was a sexual relationship;
- the degree of financial independence and any arrangements for support between the parties;
- the ownership, use and acquisition of property, and the care and support of children.
There are other guidelines set out in the legislation.
Pursuant to the legislation, the relationship must be for a two-year period. After separation, the parties have two years in which to bring an application before the Court. If not brought within such time, then the parties must seek the leave of Court to institute proceedings. The right given to the parties under the new legislation is in most respects the same as those rights that married couples have under the Family Law Act. The legislation deals with the property issues and financial issues of the parties as well as children’s issues.
The court when considering financial issues must take into account:
- financial contribution of the parties to the acquisition, conservation or improvement to the property owned by the parties;
- the contribution made by the parties to the relationship to the welfare of the family, which takes into account the homemaking and parenting roles.
The Court also takes into account the health of the parties, the income, property and financial resources of the parties, the care and control of children, the commitments for a party to support himself or herself or a child or another person, and generally takes into consideration the standard of living that in all the circumstances is reasonable.
This does not limit the considerations the Court can give and the Court does take into consideration other matters listed in the legislation.
Superannuation, as with married couples, can now be dealt with in the Family Court.
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