If you are in a De Facto or Domestic Relationship, you will need a Specialist Family Lawyer guiding you through your situation, each step of the way.
Here at Nevett Ford our Family Law team can help you through any stage. Please contact us on 03 9615 4327 to speak to a Family Law Specialist.
De Facto’s and Superannuation: Major Changes to Legislation
- For de facto couples and same sex couples who separate after 1 March 2009.
- Superannuation can now be split (as for married couples).
- Superannuation splits can involve multiple partners (e.g. a marriage followed by
a de facto relationship).
- Spousal maintenance is available.
- All properties included in the pool, including pre relationship assets.
Who does the new legislation apply to?
- Genuine de facto partners and same sex partners who qualify for living in a domestic
relationship; or
- Have lived together for two years; or
- Have a child of the relationship; or
- A serious injustice would be caused if settlement Orders are not made; or
- The relationship is registered in a State or Territory that has a relationship register.
Likely outcomes
- • It is anticipated the de facto parties’ superannuation will be split in the same
way as it has been for married couples (especially for long relationships).
- • Many people in de facto relationships will be surprised to learn of this fact
as it brings their relationship on a level similar to married people
How to protect your assets, including superannuation
- Enter into a Binding Financial Agreement to divide or quarantine property in superannuation.
- Register your de facto Agreement.
- Review validly enforce Financial Agreements entered prior to this new legislation
to ensure that superannuation has been included in the Agreement.
Likely outcomes
Parties will be going through the County Court and the Relationships Act 2008 (Vic)
unless they both agree to the Family Law Act amendment legislation in the Family
Court which means:
- No Spousal Maintenance and no super splitting.
- So therefore, super splitting is available if both parties agree and have legal
advice even if they separated pre 1 March 2009
** The Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008
De Facto Property
The Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008
provides that the majority of heterosexual and same sex de facto couples have their
property and maintenance matters dealt with under the Family Law Act 1975 (“the
Act”) in the event of a breakdown of their relationship on or after 1 March 2009.
If the breakdown of the relationship occurs before 1 March 2009, the relevant state
legislation applies which, in the case of Victoria, is the Relationships Act 2008.
The Relationships Act came into force on 1 December 2008 and repealed Part IX of
the Property Law Act 1958.
Parties whose relationship breaks down before 1 March 2009 can opt in to the new
regime providing that the choice to opt in is in writing, signed by both parties
to the relationship and each party has obtained independent legal advice from an
legal practitioner regarding the advantages and disadvantages in making the choice.
The legal practitioner providing the advice must provide a signed statement that
the necessary advice was given. Parties might choose to opt in because they want
to split the superannuation entitlements of one or other of the parties which cannot
be done pursuant to the state legislation. They may also wish to access the Family
Court or Federal Magistrates Court which are more accessible than the state courts.
The de facto laws rely on the states referring power pursuant to Section 51(xxxvii)
of the Constitution. All states except South Australia and Western Australia have
referred their powers to the Commonwealth.
A de facto relationship is defined by Section 4AA of the Act if:
- The parties are not legally married to each
other; and
- They are not related by family; and
- Having regard to all circumstances of their
relationship they have a relationship as a couple living together on a genuine domestic
basis.
The Act also lists a set of factors to which the Court must have regard when determining
whether parties are in a de facto relationship, e.g. the duration of the relationship,
whether the parties registered the relationship, whether a sexual relationship exists,
the nature and extent of common residence, the degree of financial dependence or
interdependence, the ownership use and acquisition of property, the degree of mutual
commitment to a shared life, the reputation and public aspects of the relationship
and the care and support of children.
In addition to satisfying the Court that a de facto relationship exists, an applicant
must also satisfy the Court that one of four possible gateway requirements are also
satisfied:
- That the relationship is of at least two years
duration; or
- There is a child of the de facto relationship;
or
- The party applying for an order or declaration
made substantial contributions and not to make the Orders/declaration would result
in serious injustice to the applicant; or
- The relationship was registered under a prescribed
law of a state or territory.
There are certain geographical requirements in order for the legislation to apply. Parties must be:
- Ordinarily resident in a referring state during at least one third of the de facto
relationship; or
- The applicant must have made substantial contributions to the acquisition, conservation
or improvement or property or substantial contributions as home maker and parent;
or
- The parties to the de facto relationship participating jurisdiction when the relationship
broke down.
A financial application can only be bought in a de facto matter if the application is made within two years after the end of the de facto relationship. There are two exceptions to this rule:
- If hardship would be caused to the party or
a child if the leave were not granted; or
- For maintenance applications, at the end of
the two year period the applicant was unable to support himself or herself without
an income tested pension, allowance or benefit.
Parties in de facto relationship who satisfy one of the four gateway requirements
and the geographical requirements can make an application to the Family Court or
Federal Magistrates’ Court whereas previously they could only make an application
to one of the state Courts. The Federal Magistrates’ Court and the Family Court
are more accessible and less costly than the state Courts. Parties who separated
prior to 1 March 2009 who do not opt in to the new regime however we will continue
to make an application to the state Court for relief.
The provisions in the Family Law Act that apply to de facto couples who meet one
of the gateway requirements and the geographical requirements virtually replicate
the provisions that apply to married couples, including providing for the splitting
of parties’ superannuation entitlements. In assessing the division of the parties’
assets a Court will take into account the parties future needs as well as their
financial and non financial contributions to the relationship. In addition de facto
couples are able to apply for maintenance from the other party.
Interestingly, parties can be in the marriage and de facto relationship concurrently
and the Act may well apply to situations, i.e. where a party has a wife and a mistress.
Where there are claims by multiple parties, these can be consolidated. Where a de
facto partner in an application against another de facto, a married party can join
the proceedings. On the other hand where there is an application on foot by a married
party against another married party, a de facto party can join into proceedings.
Parties in or considering entering into a de facto relationship who do not want
the Family Law Act to apply to them can enter into a Financial Agreement with each
other, setting out how the assets acquired by them before and/or during the relationship
will be divided in the event of a relationship breakdown. Financial Agreements can
also deal with what, if any, maintenance is payable by the parties. Strict requirements
applicable to Financial Agreements prior to, during or after a marriage also apply
to Financial Agreements entered into by parties prior to, during or after a de facto
relationship e.g. the parties must obtain independent legal advice and a certificate
of independent legal advice must be signed by each of the legal practitioners and
annexed to the agreement.
Dividing Furniture
Coming to an amicable agreement on the division of furniture can be difficult. To
mitigate emotional arguments that lead to property settlement, it is often helpful
to sit down and talk with your spouse to come up with a rational solution to the
division of furniture.
Generally, furniture should be divided with consideration to the current estimated
market price, rather than the purchase price. Regard should also be had to whether
or not the particular item of furniture is subject to an inheritance or has an inherent
sentimental value to solely one party. In this situation, that prized piece of furniture
should go to the spouse who has the most connection with it. If this is not obvious,
then the matter may have to be resolved at property settlement. If a loan scheme
is attached to a specific piece of furniture, that loan will usually be transferred
to the spouse that takes eventual possession of that furniture.
If you have children the division of furniture, children’s furniture and toys should
remain with the parent with whom the children live or spend the majority of time.
If equal time will be spent between parents, then a more even distribution may be
more appropriate. Again, the interests of the child are of the paramount concern.
Drawing up specific lists of the divided furniture is useful, especially in the
long run, as it makes the division of property much more clear and precise and is
a usual tool when negotiating the division of assets. You should not attempt to
dispose of jointly held assets before any property settlement without the consent
of the other party.
Where to now?
Speak to a Family Law Specialist
Often the best way to get the answers you need is to
speak to a Specialist.
To contact one of our family law specialist please
use our contact form or please call us on +61 3 9615
4327.
Book a consultation
A consultation with one of our Family Law
Specialists allows you the chance to talk about your
family law issue and work with people who deal with
these issues on a daily basis.
Also, it gives you the chance to ask any questions
that are on your mind and gives us the chance to
learn about your situation and what options are open
to you
For more information please call us on +61 3 9615
4327 or send as an e-mail at
info@nffamilylawyersmelbourne.com.au. We can
help you in any situation.
