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The definition of de facto relationship
under the Bill is not known, however, it
will not include same sex relationships.
THE BILL
Kym Duggan from the Commonwealth Attorney
General’s Department has recently stated
that the Bill will give heterosexual de
facto couples “similar rights to legally
married couples”. The Government is
otherwise being fairly secretive about the
content of the Bill.
Uncertainty about the content and the
commencement time for the new legislation
means that it is extremely important to seek
expert advice if you are about to commence,
or if you are contemplating ending a de
facto relationship, or indeed if you just
want to know ‘where you stand’.
If the new legislation is similar to the
Family Law Act, homemaker spouses will
very likely do better in a property
settlement than under the current
legislation. Those that have made the
primary financial contribution are likely to
do worse.
It may seem attractive for a homemaker
spouse (or a spouse who has made the lesser
financial contribution) to delay
negotiations or delay formalising an
agreement until the commencement of the new
legislation. There are some risks
associated with this approach, including: (i)
the two year time limit, assuming this is
retained, within which a claim must be made
may be missed (“limitation of actions”); or
(ii) the respective positions of the parties
may change in the intervening period,
financially or otherwise, to such an extent
as to change their likely entitlements; or
(iii) the new legislation may not cover
couples who have separated before the
introduction of the Act. There are also
practical and personal reasons why this
approach is disadvantageous, including (i)
evidence is often harder to come by if there
is a long delay between separation and
settlement; or (ii) the parties will not be
able to move on, for example acquire other
property or commence a new relationship.
On the other hand, there may be good reason
for a spouse who has made the greater
financial contribution to ‘get the ball
rolling’ before the commencement of the new
legislation. However, it is also uncertain
as to how the new legislation will apply to
proceedings that have already commenced
under the current, State system.
Another important consideration for de facto
spouses may be the possibility that the Bill
will classify superannuation as an asset,
available for division between the parties
on breakdown of their relationship and that
the Bill may allow superannuation splitting
between de facto spouses
What about Cohabitation Agreements and
Separation Agreements? In Victoria, these
Agreements are not binding on the Court but
must be taken into consideration by the
Court if/when it is called upon to resolve a
dispute. Generally speaking, if both
parties have had independent legal advice,
the terms of the Agreement are fair and
reasonable and the parties have acted on the
Agreement, the terms will be upheld by the
Court. It is not known whether these
Agreements will be ‘recognised’ by the new
legislation or whether new Agreements (which
comply with the new legislative provisions)
will have to be entered into. If you have
entered into a Cohabitation or Separation
Agreement or you are thinking about doing
so, you should seek expert legal advice.
Jodylee Bartal and Janeta Nedanovska can
provide further information or specific
advice on this topic. They can be contacted
on +61 4 9609 1552 or by email at
jbartal@rk.com.au or
jnedanovska@rk.com.au |
