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De Facto Relationships Notes

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This is an extract of our De Facto Relationships document, which we sell as part of our Family Law Notes collection written by the top tier of University Of New South Wales students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Family Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

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FL e2 1 de facto relationships Table of Contents

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. Nonmarital 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 nonexhaustive 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 samesex partners, and also to person in some nonsexual 'caring' relationships (see s 4 and 5)

What act applies?
When did relationship end? Before 1/3/09 - go to NSWPRA. If still in existence at time of 1/3/09 - go to FLA. If a caring relationship? Then go to NSW PRA If doesn't fall within jurisdictional or residential requirements for Federal Claim under FLA - then go to NSW PRA. Note that NSW relationships can be registered under the Relationships Register Act 2010 (NSW) since 1 July 2010

Property (relationships) act 1984 (NSW) - 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 1 of 39

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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.

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

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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.

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

* 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 a charitable or benevolent organisation): S 5(2) PRA Child of parties to a domestic relationship: 3 of 39

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* (3) A reference in this Act to a child of the parties to a domestic relationship is a reference to any of the following: (a) a child born as a result of sexual relations between the parties: s 5(3)(a) PRA (b) a child adopted by both parties: s 5(3)(b) PRA (c) where the domestic relationship is a de facto relationship between a man and a woman, a child of the woman: (i) of whom the man is the father: s 5(3)(c)(i) or (ii) of whom the man is presumed, by virtue of the Status of Children Act 1996, to be the father, except where such a presumption is rebutted: s 5(3)(c)(ii) PRA (c1) where the domestic relationship is a de facto relationship between two women, a child of whom both of those women are presumed to be parents by virtue of the Status of Children Act 1996: s 5(3)(c1) PRA (d) a child for whose long-term welfare both parties have parental responsibility (within the meaning of the Children and Young Persons (Care and Protection) Act 1998): s 5(3)(d) PRA (4) Except as provided by section 6, a reference in this Act to a party to a domestic 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 family relationships for s 4 and 5: s 5A PRA

* Definition of related by family under s 5A(1): For the purposes of sections 4 and 5, persons are related by family if: Ancestor? (a) one is the parent, or another ancestor, of the other: s 5A(1)(a) or Descendant? (b) one is the child, or another descendant, of the other: s 5A(1)(b) or Parent in common / stepsiblings? they have a parent in common: s 5A(1)(c)

* (2) For the purposes of this section: Adoptive relationship can found ancestor/descendant: (a) a person is taken to be an ancestor or descendant of another person even if the relationship between them is traced through, or to, a person who is or was an adopted child: s 5A(2), and Even if adoption is not effective then the relationship continues: (b) the relationship of parent and child between an adoptive parent and an adopted child is taken to continue even though the order by which the adoption was effected has been annulled, cancelled or discharged or the adoption has otherwise ceased to be effective: s 5A(2)(b) and Adoptive relationship is natural relationship: (c) the relationship between an adopted child and the adoptive parent, or each of the adoptive parents, is taken to be or to have been the natural relationship of child and parent: s 5A(2)(c) and Child can be child of multiple adoptive parents: (d) a person who has been adopted more than once is taken to be the child of each 4 of 39

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person by whom he or she has been adopted: s 5A(2)(d)

* Adopted under any law under s 5A(3): In subsection (2), "adopted" means adopted under the law of any place, whether in Australia or not, relating to the adoption of children.

* A reference to an adoptive parent includes a child is transferred under a parentage order under the Surrogacy Act 2010: Subsection (2) applies in relation to a child whose parentage is transferred as a result of a parentage order, or an Interstate parentage order, within the meaning of the Surrogacy Act 2010 in the same way as it applies in relation to an adopted child. For that purpose, a reference in that subsection to an adoptive parent is to be read as a reference to a person to whom the parentage of a child is transferred under such a parentage order: s 5A(4) Scope of application of act: s 6 PRA

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This Act (except Part 5) does not apply to or in respect of: o (a) a de facto relationship which ceased before the appointed day (1/7/1985), or o (b) a person in so far as he or she was a party to a de facto relationship referred to in paragraph (a). (2) Without affecting subsection (1), this Act, as amended by the Property (Relationships) Legislation Amendment Act 1999, does not (except for Part 5) apply to or in respect of: o (a) a domestic relationship that ceased before the commencement of this subsection (28/6/1999), or o (b) a person in so far as he or she was a party to a relationship referred to in paragraph (a). Other rights of parties to relationship not affected by this Act: Nothing in this Act derogates from or affects any right of a party to a domestic relationship to apply for any remedy or relief under any other Act or any other law: s 7 PRA

Applications for orders Party can apply for adjustment of interests under s 14:

* A party to a domestic relationship can apply for adjustment of interests: Subject to this Part, a party to a domestic relationship may apply to a court for an order under this Part for the adjustment of interests with respect to the property of the parties to the relationship or either of them or for the granting of maintenance, or both: s 14(1) PRA

* Application can be made alongside any other applications: (2) An application referred to in subsection (1) may be made whether or not any other application for any remedy or relief is or may be made under this Act or any other Act or any other law: s 14(2) PRA Prereq 1#: residence within State etc under s 15:

* Residence in NSW on: date of application (s 15(1)(a) AND (substantial period 5 of 39

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of their relationship (being 1/3 under s 15(2)) or substantial contributions made in NSW s 15(1)(b)): A court shall not make an order under this Part unless it is satisfied: (a) that the parties to the application were or either of them was resident within New South Wales on the day on which the application was made, and (b) that: (i) both parties were resident within New South Wales for a substantial period of their domestic relationship, or (ii) substantial contributions of the kind referred to in section 20 (1) (a) or (b) have been made in New South Wales by the applicant. Substantial period of relationship is at least 1/3: (2) For the purposes of subsection (1) (b) (i), the parties to an application shall be taken to have been resident within New South Wales for a substantial period of their domestic relationship if they have lived together in the State for a period equivalent to at least one-third of the duration of their relationship: s 15(2)

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

* Must have lived in domestic relationship for at least 2 years: Except as provided by subsection (2), a court shall not make an order under this Part unless it is satisfied that the parties to the application have lived together in a domestic relationship for a period of not less than 2 years: s 17(1) PRA 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)

* (2) A court may make an order under this Part where it is satisfied: (a) that there is a child of the parties to the application, or (b) that the applicant: (i) has made substantial contributions of the kind referred to in section 20 (1) (a) or (b) for which the applicant would otherwise not be adequately compensated if the order were not made, or (ii) has the care and control of a child of the respondent, and that the failure to make the order would result in serious injustice to the applicant. Time limit for applying of 2 years after date of relationship ceasing: s 18

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General rule is that application can only be made within 2 years: If a domestic relationship has ceased, an application to a court for an order under this Part can only be made within the period of 2 years after the date on which the relationship ceased, except as otherwise provided by this section: s 18(1) PRA Exception if greater hardship would be caused to applicant if leave not granted than respondent if leave were granted - but not for orders under s 27(1) for maintenance: (2) A court may, at any time after the expiration of the period

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referred to in subsection (1), grant leave to a party to a domestic relationship to apply to the court for an order under this Part (other than an order under section 27 (1) made where the court is satisfied as to the matters specified in section 27 (1) (b)) where the court is satisfied, having regard to such matters as it considers relevant, that greater hardship would be caused to the applicant if that leave were not granted than would be caused to the respondent if that leave were granted: s 18(2) PRA (3) Where, under subsection (2), a court grants a party to a domestic relationship leave to apply to the court for an order under this Part, the party may apply accordingly.

Duty of court to end financial relationships: s 19 PRA In proceedings for an order under this Part, a court shall, so far as is practicable, make such orders as will finally determine the financial relationships between the parties to a domestic relationship and avoid further proceedings between them.

Adjustment of interests with respect to property: ss 20, 24 PRA 20 Application for adjustment

* On an application by a party to a domestic relationship for an order under this Part to adjust interests with respect to the property of the parties to the relationship or either of them, a court may make such order adjusting the interests of the parties in the property as to it seems just and equitable having regard to: o Contributions to property: (a) the financial and non-financial contributions made directly or indirectly by or on behalf of the parties to the relationship to the acquisition, conservation or improvement of any of the property of the parties or either of them or to the financial resources of the parties or either of them, and o Contributions to welfare of family: (b) the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the parties to the relationship to the welfare of the other party to the relationship or to the welfare of the family constituted by the parties and one or more of the following, namely: (i) a child of the parties, (ii) a child accepted by the parties or either of them into the household of the parties, whether or not the child is a child of either of the parties.

* Court can make order with declaration rights of parties to property: (2) A court may make an order under subsection (1) in respect of property whether or not it has declared the title or rights of a party to a domestic relationship in respect of the property: s 20(2) Commentary:

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Order for adjustment of property under s 20 o Only s 20 (step 1 s 79 factors) - no step 2 factors. This was deliberate to improve ont eh common law without carbon copying FLA. o Clear that s 20 makes contributions fundamental

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