#7218 - De Facto Couples And Relationships Of Care - Family Law

• Apply the Property (Relationships) Act 1984 (NSW) for ‘close personal relationships of care’ and for de-facto relationships that ended before 1 March 2009. For other de facto relationships use the FLA and see Part VIIIAB.

• The states used to have laws for financial adjustment in non-marital relationships. However de-facto partners were not given exactly the same rights as married partners in all situations under the FLA. They had an in-between or intermediate status. For example the court could divide the couple’s assets based on financial and non-financial contributions like domestic and child raising contributions but was not required to look into the future. This means the court did not need to take into account the parties’ overall economic position and earning capacities and the responsibility for future care of the children. Also adult maintenance was only allowed for a shorter duration under s 27 and 30 of the old Act.

• However there were reforms and the old Act became the Property (Relationships) Act 1984 (NSW). Also a list of non – exhaustive criteria was inserted into the Act to be considered by the court in deciding on the existence of a de-facto relationship (s 4(2)-(3)). And the application of existing provisions in the Act dealing with financial adjustment was extended to same-sex partners, and also to persons in some non-sexual ‘caring’ relationships (ss 4 and 5).

• What are de-facto relationships under the NSW Act? Under s 4(1), a de-facto relationship is a relationship between two adult persons: who live together as a couple and who are not married to one another or related by family. S 4(2) are the factors to be taken into account to determine whether two persons are in a de-facto relationship: duration of the relationship, nature and extent of common residence, whether or not a sexual relationship exists, the degree of financial interdependence or dependence and any financial support between the parties, the ownership and use of property, the degree of mutual commitment to a shared life, the care and support of children, performance of household duties, reputation and public aspects of the relationship. However 4(3) makes clear that none of the matters in (2) are to be regarded as ‘necessary’ for the existence of a de-facto relationship and a court can attach weight to these factors as seems appropriate in the circumstances of the case.

• What are domestic relationships under the NSW Act? S 5 defines domestic relationships as a de-facto relationship or “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.” However s 5(2) makes it clear that a close personal relationship does not exist if one provides domestic support and personal care for fee or reward or on behalf of another person or organisation (including government agency, body corporate or a charitable or benevolent organisation).

• Other sections of the NSW Act: The time limit for making applications was within the period of 2 years after the date on which the relationship ceased under s 18(1). Parties must have been in a 2 year domestic relationship to make an order under the act (s 17(1)). There is NO general right to maintenance between parties to a de-facto relationship under s 26 and for maintenance the applicant must be unable to support themselves and have a child under the age of 12 or physically handicapped and under the age of 16 (s 27). You may not receive maintenance if at the time you make the application you are in another relationship or married (s 29) and maintenance will only go on until your child reaches the ages prescribed. S 44-49 deal with domestic relationship agreements. S 53-55 is the power of the court where there is domestic violence (like an injunction).

• The reference of power to the Cth from a number of states, coupled with federal legislative competence over the Territories, meant that new federal legislation in relation to financial adjustment on the breakdown of same-sex and opposite sex de facto relationships came into force in early 2009.

• The Family Law Amendment (De Facto Financial Matters and other Measures) Act 2008 (Cth) came into force 1 March 2009, including the insertion of Part VIIIAB of the FLA which deals with property adjustment, adult maintenance and financial adjustment between de facto partners (same sex or opposite sex) in a manner similar to that currently provided for under Part VIII of the federal legislation for married persons.

• It applies to ACT, NT, NSW, VIC, QLD and Tasmania.

• However the state legislation does have some operation:

  1. The new Part VIIIAB will only apply to same sex and opposite sex de facto relationships currently in existence at the commencement of 1 March 2009, or which begin after that date. Relationships that ended before 1 March 2009 will continue to be dealt with under state legislation.

  2. State and Territory provisions may continue to be relevant where for some reason the applicant cannot satisfy the jurisdictional or residential requirements for initiating a federal claim under Part VIIIAB.

  3. State and Territory legislation continues to apply in relation to other types of domestic relationships, e.g. so called ‘caring relationships’ in NSW.

1. proceedings between the parties to a defacto relationship with respect to the maintenance of one of them after the breakdown of their defacto relationship; or

2. proceedings between:

   1. a party to a defacto relationship; and

   2. the bankruptcy trustee of a bankrupt party to the defacto relationship;

with respect to the maintenance of the first‑mentioned party after the breakdown of the defacto relationship; or

3. proceedings between the parties to a defacto relationship with respect to the distribution, after the breakdown of the defacto relationship, of the property of the parties or either of them; or

4. proceedings between:

   1. a party to a defacto relationship; and

   2. the bankruptcy trustee of a bankrupt party to the defacto relationship;

with respect to the distribution, after the breakdown of the defacto relationship, of any vested bankruptcy property in relation to the bankrupt party; or

5. without limiting any of the preceding paragraphs, proceedings with respect to a PartVIIIAB financial agreement that are between any combination of:

   1. the parties to that agreement; and

   2. the legal personal representatives of any of those parties who have died; (including a combination consisting solely of parties or consisting solely of representatives); or

6. third party proceedings (as defined in section4B) to set aside a PartVIIIAB financial agreement; or

7. any other proceedings (including proceedings with respect to the enforcement of a decree or the service of process) in relation to concurrent, pending or completed proceedings of a kind referred to in any of the preceding paragraphs.

Meaning of defacto relationship

1. A person is in a defacto relationship with another person if:

1. the persons are not legally married to each other; and

2. the persons are not related by family (see subsection(6)); and

3. having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Paragraph(c) has effect subject to subsection(5).

Working out if persons have a relationship as a couple

2. Those circumstances may include any or all of the following:

1. the duration of the relationship;

2. the nature and extent of their common residence;

3. whether a sexual relationship exists;

4. the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

5. the ownership, use and acquisition of their property;

6. the degree of mutual commitment to a shared life;

7. whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

8. the care and support of children;

9. the reputation and public aspects of the relationship.

3. No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a defacto relationship.

4. A court determining whether a defacto 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.

5. For the purposes of this Act:

1. a defacto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and

2. a defacto relationship can exist even if one of the persons is legally married to someone else or in another defacto relationship.

When 2 persons are related by family

6. For the purposes of subsection(1), 2 persons are related by family if:

1. one is the child (including an adopted child) of the other; or

2. one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or

3. they have a parent in common (who may be an adoptive parent of either or both of them).

For this purpose, disregard whether an adoption is declared void or has ceased to have effect.

For the purposes of this Part, a child is a child of a defacto relationship if the child is the child of both of the parties to the de...