#8559 - De Facto Relationships - Family Law

FL e2 1 de facto relationships 1

What act applies? 3

When did relationship end? Before 1/3/09 – go to NSWPRA. If still in existence at time of 1/3/09 – go to FLA. 3

If a caring relationship? Then go to NSW PRA 3

If doesn’t fall within jurisdictional or residential requirements for Federal Claim under FLA – then go to NSW PRA. 3

Note that NSW relationships can be registered under the Relationships Register Act 2010 (NSW) since 1 July 2010 3

Property (relationships) act 1984 (NSW) – 3

Definition of a de facto relationship: s 4 Property (Relationships) Act 5

Domestic relationships: including DFR and close personal relationships : s 5 PRA 5

Definition of family relationships for s 4 and 5: s 5A PRA 6

Scope of application of act: s 6 PRA 7

Applications for orders 7

Party can apply for adjustment of interests under s 14: 7

Prereq 1#: residence within State etc under s 15: 7

Prereq 2# for making order: length of relationship s 17(1) 8

Prereq 3#: court may make order where there is a child, or substantial contributions have been made that wouldn’t be compensated for: s 17(2) 8

Time limit for applying of 2 years after date of relationship ceasing: s 18 8

Duty of court to end financial relationships: s 19 PRA 9

Adjustment of interests with respect to property: ss 20, 24 PRA 9

24 Effect of death of parties on application 9

Division 3 – Maintenance under ss 26,27, 29, 30 10

26 No general right to maintenance between parties to relationship 10

27 Order for maintenance 10

Effect of subsequent relationship or marriage: s 29 PRA 11

Duration of orders for periodic maintenance: s 30 PRA 11

32 Cessation of order--generally : s 32 12

Division 4 – General 12

Orders etc of a court : s 38 12

Court can set aside Transactions to defeat claims: s 42 PRA 13

Court shall have regard to Interests of other parties (eg bona fide): s 43 PRA 13

Part 4 – Domestic relationship agreements and termination agreements 13

Domestic relationship agreement: s 44(1) and s 44(2) 13

Termination agreement: s 44(1) 14

This Part applies to agreements made before PRA 1999: s 44(3) 14

Unmarried couples may enter into agreements: s 45 14

Agreements are subject to law of contract: s 46 14

Effect of agreements in certain proceedings 14

Effect of certain exclusion provisions in agreements: s 48 15

Court may vary provisions of domestic relationship agreements but not termination: s 49 16

Domestic violence and harassment provisions (part 5) 16

Granting of injunctions: s 53 16

Failure to comply with injunction – is offence, imprisonment up to 6 months: S 54 16

Other powers of courts not affected: s 55 17

Miscellaneous powers 17

56 Declaration as to existence of domestic relationship 17

62 Effect of Property (Relationships) Legislation Amendment Act 1999 is not to change anything in the marriage relationship 17

Registering relationships under Relationships Register Act 2010 (NSW) 17

FLA Part VIIIAB – unmarried couples – in force from 1/3/09 18

Definition: 4AA Defacto relationships 18

Institution of proceedings under s 44(5) within 2 years or with leave under s 44(6) FLA: 19

Definition of child of DFR is when child is child of both parties: s 90RB 20

90RD Declarations about existence of defacto relationships: s 90RD 20

Effect of declarations is same as judgment of court: s 90RE 21

Maintenance, declarations of property interests and alterations of property interests: Div 2 FLA 21

90SA This Division does not apply to certain matters covered by binding financial agreements 21

When this Division applies such that a court can make an order/declaration: length of relationship 2 years s 90SB(a), OR if child of DFR (b), or (c) applicant has made substantial contributions + injustice if no order, or (d) relationship registered: 90SB 21

90SC This Division ceases to apply in relation to a defacto relationship if the parties marry each other 22

Maintenance 22

Prereq: Geographical requirement for orders under maintenance or property adjustment: s 90SD 22

Power of court in maintenance proceedings – to make order as considered proper : s 90SE 22

90SF Matters to be taken into consideration in relation to maintenance under s 90SF: 23

90SI Modification of maintenance orders 25

90SJ Cessation of maintenance orders 27

Declarations and alterations of property interests under s 90SK, 90SL, 90SM 27

For financial agreements during de facto relationships – s 90UC 32

Class notes:

• Note s 4AA – meaning of de facto relationship is under FLA act 1975 part viiiBA in force from 1 march 2009.

• S 90SE – power of court in maintenance proceedings. S 90SE(3) read it before.

• Page 134 – section s 90UUB – identical to financial agreement.

Commentary: in 25 years – things have change a LOT.

Non-marital domestic relationships

• Property (Relationships) Act 1984 (NSW)

Topics:

• Name of the De Facto Relationships Act 1984 (NSW) was changed to the Property (Relationships) Act 1984

• List of non-exhaustive criteria was inserted in the Act to be considered by the court in deciding on the existence of a de facto relationship ( see s 4(2)-(3))

• Application of existing provisions of the Act dealing with financial adjustment (ie division of property, adult maintenance and financial agreements) was extended to same-sex partners, and also to person in some non-sexual ‘caring’ relationships (see s 4 and 5)

Relevant for:

• de facto relationships that ended before 1 March 2009

• Where applicant can’t satisfy jurisdictional or residential requirements for initiating a federal claim

• Caring relationships – ie outside scope of reference of power to Cth

• Registration of relationships under

S 3(1)

"financial resources", in relation to parties to a domestic relationship or either of them, includes:

(a) a prospective claim or entitlement in respect of a scheme, fund or arrangement under which superannuation, retirement or similar benefits are provided,

(b) property which, pursuant to the provisions of a discretionary trust, may become vested in or used or applied in or towards the purposes of the parties to the relationship or either of them,

(c) property, the alienation or disposition of which is wholly or partly under the control of the parties to the relationship or either of them and which is lawfully capable of being used or applied by or on behalf of the parties to the relationship or either of them in or towards their or his or her own purposes, and

(d) any other valuable benefit.

• De facto relationship definition: A relationship between two adult persons: (a) who live together as a couple, and (b) who are not married to one another or related by family: s 4(1) PRA

• All circumstances of relationship are to be taken into account in determining whether there is a DFR under s 4(2) PRA: (2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case:

(a) the duration of the relationship,

(b) the nature and extent of common residence,

(c) whether or not a sexual relationship exists,

(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,

(e) the ownership, use and acquisition of property,

(f) the degree of mutual commitment to a shared life,

(g) the care and support of children,

(h) the performance of household duties,

(i) the reputation and public aspects of the relationship.

• No matter is necessary under s 4(3): (3) No finding in respect of any of the matters mentioned in subsection (2) (a)-(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

• (4) Except as provided by section 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship.

• Definition of domestic relationship under s 5(1) PRA: For the purposes of this Act, a domestic relationship is: (a) a de facto relationship, or (b) a close personal relationship (other than a marriage or a de facto relationship) between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care: s 5(1)

• Definition excludes care for fee/reward/ or where its done for anything person/organizations 5(2): For the purposes of subsection (1) (b), a close personal relationship is taken not to exist between two persons where one of them provides the other with domestic support and personal care: (a) for fee or reward, or (b) on behalf of another person or an organisation (including a government or government agency, a body corporate or...