Change of Law in March 2009
The Law regarding De Facto and same sex relationships changed substantially in March 2009. Couples separating after 1 March 2009 fall under the Family Law Act which is a Commonwealth Statute. Couples separating prior to 1 march 2009 fall under State law which in NSW is the Property (Relationships) Act. Apart from a substantial change in the law, there is also a substantial change in the way disputes are litigated. Under the new law, property settlements may be brought in the Family Court whereas cases under the old law must still be brought in either the District Court of NSW or the Supreme Court of NSW.
The definition of a De Facto couple is imprecise. The Family Law Act only gives a list of factors to be considered in determining whether a De Facto relationship exists or not. where a couple is "living together on a genuine domestic basis” then some of the circumstances that may be considered in determining whether a De Facto relationship exists or not are:
1) The duration of the relationship;
2) The nature and extent of the couple’s common residence;
3) Whether a sexual relationship exists;
4) The degree of financial dependence or interdependence, and any arrangements for financial support,
between the couple;
5) The ownership, use and acquisition of property;
6) The degree of mutual commitment to a shared life;
7) The care and support of children; and
8) The reputation and public aspects of the relationship.
Under the old law, a claim could not be brought for property settlemet unless:
1) The parties had lived together of 2 years or more: or
2) There are children; or
3) There parties had made a substantial financial contribution to the relationship.
Under both the old and new laws, a de facto relationship can exist between people of different sexes and of the same sex.
Under the new laws, a de facto relationship can exist even if one of the partners is legally married to another person or in a de facto relationship with another person.
What is certain is that a couple cannot be classified as de facto if:
a) The partners are legally married to each other; or
b) One partner is the child of the other (either natural or adoptive); or
c) One partner is a descendant of the other (even through an adoptive parent); or
d) The partners have a parent in common (either natural or adoptive).
Unfortunately, the way the new legislation is drafted makes it very diffidult in many cases to predict with certainty whether or not a couple will be classified by the court as having been in a de facto relationship.
Our Team at Patrick Lim & Associates will be able to assist you with your Property settlement as well as children's issues. Contact us to make an appointment to see one of our lawyers.
The above is not legal advice and is only a brief summary of a complex area of Law. You must seek legal advice which is appropriate to your particular and specific circumstances.
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