Property and financial matters upon the breakdown of de facto relationships

Property and financial matters upon the breakdown of de facto relationships

Summary

Reforms introduced in 2009 to the Family Law Act 1975 (Cth) have meant that most same-sex and opposite-sex de facto couples (in all states and territories except Western Australia) who end their relationships can now have their property and financial matters dealt with in substantially the same way as married people. This paper aims to provide non-legal professionals in the family law sector with a general outline of the relevant reforms, their genesis, and the arguments in favour of and against their introduction.

Key messages

  • The 2009 reforms to the Family Law Act (Cth) brought most Australian same-sex and opposite-sex de facto couples within the federal family law system for the resolution of their property and financial matters upon separation.

  • The reforms introduced a definition of de facto relationship and provided guidance to assist in determining whether a de facto relationship may be said to exist.

  • The reforms enable access to property settlement and maintenance for most separated de facto couples in terms substantially the same as those available for married couples.

  • The reforms enable most de facto couples to enter into Binding Financial Agreements, prior to commencing their relationship, during their relationship and upon separation.

  • The reforms were aimed at extending the federal family law property and financial settlements regime to opposite-sex and same-sex de facto couples. They received strong support but have also been subject to criticism, including on the basis of their imposition of the consequences of marriage upon people who have made a conscious decision not to marry.

Podcast

Key messages: 

The 2009 reforms to the Family Law Act (Cth) brought most Australian same-sex and opposite-sex de facto couples within the federal family law system for the resolution of their property and financial matters upon separation.

The reforms introduced a definition of de facto relationship and provided guidance to assist in determining whether a de facto relationship may be said to exist.

The reforms enable access to property settlement and maintenance for most separated de facto couples in terms substantially the same as those available for married couples.

The reforms enable most de facto couples to enter into Binding Financial Agreements, prior to commencing their relationship, during their relationship and upon separation.

The reforms were aimed at extending the federal family law property and financial settlements regime to opposite-sex and same-sex de facto couples. They received strong support but have also been subject to criticism, including on the basis of their imposition of the consequences of marriage upon people who have made a conscious decision not to marry.

Rachel Carson is a Research Fellow with the Family Law and Family Violence team at the Australian Institute of Family Studies.

The author wishes to acknowledge Rhys Price-Robertson, Elly Robinson, Dr Nicola Ross, Dr Grania Sheehan and Dr Dorothy Kovacs for their valuable feedback on earlier drafts of this paper. Appreciation is also extended to Dr Rae Kaspiew, Dr Dary Higgins, Professor Alan Hayes and Shaun Lohoar of the Australian Institute of Family Studies.

The feature image is by Images Money, CC BY 2.0

CFCA Paper
24
17 pp.
ISSN: 
2200-4106
ISBN: 
978-1-922038-64-7
Trigger warning: 

Please note: The content of this paper is intended only to provide general information in summary form. It is not legal advice and should not be relied upon as such. Legal and other professional advice should be sought by you or your organisation.