Legal Comment by Mark Illidge

December 2008

Long-debated reforms to the Family Law Act were passed by the Federal Parliament last month, which when they commence in 2009, will allow de facto couples to access the federal family law courts for resolution of property and maintenance matters.

Currently, both de facto and married couples are able to access the federal family law courts for child-related proceedings. However, for property and maintenance matters de facto couples must go to their State and Territory courts, which are not as experienced as family law courts in dealing with relationship matters.

The courts will look at a number of factors to determine if a de facto relationship exists, including:

• duration of the relationship;
• nature and extent of their common residence;
• whether a sexual relationship exists;
• ownership, use and acquisition of their property;
• degree of mutual commitment to a shared life;
• care and support of children; and
• reputation and public aspects of the relationship.

A de facto relationship can exist between two persons of different sexes or of the same sex. Furthermore, a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

In order for the legislation to apply, the court must be satisfied that:

• the period, or the total of the periods, of the de facto relationship is at least two years; or
• there is a child of the de facto relationship; or
• the party applying to the court has made substantial financial contributions to the acquisition, conservation or improvement of the property of the parties to the relationship and a failure to make the order would result in a serious injustice to that party.

The new act will only apply to breakdowns that occur after the commencement of the legislation.

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