OVERVIEW OF THE BILL
This chapter provides a brief background to the Bill, and then outlines
the main provisions of the Bill.
Background to the Bill
Purpose of the Bill
The primary purpose of the Bill is to amend the Family Law Act to
provide opposite-sex and same-sex de facto couples access to the federal family
law courts in relation to property and maintenance matters.
Currently, same-sex and opposite-sex de facto couples can access the
federal Family Court to resolve child-related matters. However, financial and
property arrangements between separated de facto couples are subject to state
and territory law, which varies between jurisdictions. As was explained by the
Attorney-General in his second reading speech:
...where de facto couples have children and their relationship
breaks down, they can find themselves with children issues in one of the
federal family law courts and property issues in a State court.
This will mean couples having to run parallel proceedings in two
court systems, placing unnecessary additional costs and inconvenience on de
facto couples, as well as an administrative burden on the federal and State
The Bill attempts to address these issues by enabling federal family law
courts to deal in the one proceeding with both financial and child-related
matters arising for separated de facto couples. As the Explanatory Memorandum
The Bill will offer de facto couples covered by the Bill a
nationally consistent financial settlement regime, to minimise jurisdictional
disputes and uncertainties that sometimes impede settlement of these matters
under State and Territory law.
The EM further explains that the Bill will:
...offer these de facto couples access to the family law system
for determination of their financial matters arising on relationship breakdown.
The family law courts have experience in relationship matters, and have
procedures and dispute resolution mechanisms more suited to handling family
The Bill relies on referrals by states to the Commonwealth under
subsection 51(xxxvii) of the Constitution. This gives effect to a decision at
the November 2002 meeting of the Standing Committee of Attorneys-General to
proceed with Commonwealth implementation of references of state powers in this
area, with support from a majority of state and territory governments.
Since then, for example, New South Wales has enacted the Commonwealth
Powers (De Facto Relationships) Act 2003, and Victoria, Queensland
and Tasmania have legislated in similar terms. The Commonwealth is relying on
its power over territories to apply the new legislation in relation to the Australian
Capital Territory, Northern Territory and Norfolk Island.
Western Australia (WA) has its own family court (WA Family Court) under
the Family Court Amendment Act 2002 (WA). The WA Family Court
administers child-related matters and property settlements for married and de
facto (including same-sex) couples.
HREOC inquiry on same-sex
The Bill applies to both opposite-sex and same-sex de facto couples. The
Attorney-General stated, in his second reading speech, that the Bill 'is
consistent with the Government's policy not to discriminate on the basis of
This is apparently also consistent with the referrals provided by the states.
The Bill would therefore implement certain aspects of the Same-Sex: Same Entitlements report by the Human Rights and
Equal Opportunity Commission (HREOC), which reported in May 2007.
This report found that:
...at least 58 federal laws relating to financial and work-related
entitlements discriminated against same-sex couples and their children. These
laws breach the International Covenant on Civil and Political Rights. Laws that
discriminate against the children of same-sex couples and fail to protect the
best interests of the child in the area of financial and work-related
entitlements also breach the Convention on the Rights of the Child.
Among other matters, the HREOC report recommended that:
- same-sex and opposite-sex de facto couples should both have
access to the federal Family Court for property and child-related matters;
- the Family Law Act should be amended to set out a model
definition of 'de facto relationship'; and
- the parenting presumptions under the Family Law Act should be
amended – this is discussed further in relation to the definition of 'child of
a de facto relationship' in the next chapter.
The EM also outlines the consultations undertaken by the
Attorney-General's Department (Department) in relation to the Bill. According
to the EM, consultation occurred over the period November 2006 to March 2007
with states and territories, the Family Court of Australia, the Federal
Magistrates Court, the Family Law Section of the Law Council of Australia, the
Family Law Council and with affected government agencies. In particular, the EM
The Family Court of Australia and the Federal Magistrates Court
of Australia were consulted about the financial impact of additional workload
generated by the proposed amendments.
The EM states that 'the primary objective of the Bill is to extend the
financial settlement regime under the Act to parties to a de facto
The Bill does this by inserting a new Part VIIIAB into the Family Law Act
which confers jurisdiction on certain courts – the Family Court of Australia
and the Federal Magistrates Court – to make orders in relation to de facto
financial matters. These matters include proceedings for distribution of
property or financial resources, or for provision of maintenance between
parties to a de facto relationship.
Some of the key new definitions proposed by the Bill are set out below.
De facto relationship – new
The Bill proposes to repeal the existing definition of 'de facto
relationship' in subsection 4(1) of the Family Law Act (item 5 of Schedule 1).
A new definition of 'de facto relationship' is set out in proposed new section
4AA in item 21 of Schedule 1.
The new definition is based on the current definition in subsection 4(1)
of the Family Law Act of a 'couple living together on a genuine domestic basis'
although not legally married to each other. However, the new definition
encompasses both opposite-sex and same‑sex de facto relationships,
unlike the previous definition, which was confined to opposite‑sex de
Subsection 4AA(2) provides a list of circumstances for a court to
consider in determining whether a de facto relationship exists, including:
- the duration of the relationship;
- the nature and extent of their common residence;
- whether a sexual relationship exists;
- the degree of financial dependence or interdependence, and any
arrangements for financial support, between them;
- the ownership, use and acquisition of their property;
- the degree of mutual commitment to a shared life;
- whether the relationship is or was registered under a prescribed
law of a state or territory as a prescribed kind of relationship;
- the care and support of children; and
- the reputation and public aspects of the relationship.
In relation to registered relationships, as referred to in proposed
paragraph 4AA(2)(g), the EM explains that:
Some State and Territory laws provide for registration of
certain relationships that are not marriages on Relationships Registers
maintained by the relevant State or Territory Registrar of Births, Deaths and
Marriages. The relationship must be of a kind that has been prescribed, as some
State Relationships Registers provide for the registration of relationships
that do not fall within the definition of 'de facto relationship' in the State
reference Acts, for example caring relationships.
Proposed subsection 4AA(3) provides that no particular finding in
relation to any listed circumstance is necessary in deciding whether there is a
de facto relationship.
Proposed paragraph 4AA(5)(b) clarifies that a de facto relationship can
exist even if a person in the relationship is legally married to another person
or in another de facto relationship.
Proposed paragraph 4AA(1)(b) requires that the persons must not be
related by family. According to the EM, this is derived from the definition of
the term 'de facto relationship' in the state reference Acts, which does not
include caring relationships.
Child of a de facto relationship –
new section 90RB
Proposed section 90RB provides a definition of 'child of a de facto
relationship' for the purposes of Part VIIIAB
- a child of whom each of the parties to the de facto relationship
are the parents;
- a child adopted by the parties to the de facto relationship or by
either of them with the consent of the other; or
- a child under subsection 60H(1) of the Family Law Act – this
subsection sets out rules relating to parentage of a child born to a woman as a
result of an artificial conception procedure while the woman was married to a
Subsection 90RB(3) provides that, for the purposes of section 90RB, existing
subsection 60H(1) of the Family Law Act applies to same-sex de facto couples in
a corresponding way to the way in which it applies to opposite-sex de facto
couples. The EM states that 'this provision extends the application of
subsection 60H(1) to both opposite-sex and same‑sex de facto couples'.
Participating jurisdiction – new
A 'participating jurisdiction' is defined in new subsection 90RA(1) as
each 'referring State' and each territory. A 'referring State' is then defined
in subsection 90RA(2) to mean a state that has provided to the Commonwealth a
reference of powers over financial matters relating to de facto relationships
arising out of the breakdown of those relationships. The provision applies
equally to states that have not yet, but may, in the future, refer power to the
The EM explains that:
Because the Commonwealth power to legislate for de facto
financial matters relies on powers referred by State Parliaments, the Bill will
only apply to the territorial limits of those 'referring States', and does not
apply in States that have not referred powers over these matters.
The Bill's relationship with state
and territory laws – new section 90RC
Where federal jurisdiction applies to de facto financial matters under
the provisions of the Bill in participating jurisdictions, state and territory
laws dealing with the same subject matter are excluded. Detailed provisions
dealing with the relationship between the new de facto financial provisions in
the Family Law Act and state and territory laws are set out in new section 90RC
in subdivision B.
The EM states that:
The effect of section 90RC is to carve out an 'exclusion zone'
for the operation of new federal de facto financial provisions, to the
exclusion of State and Territory laws dealing with or referring to those
matters. Those areas of operation of State and Territory laws excluded by
federal law are necessarily confined to the scope of the State referred powers,
being in relation to financial matters arising out of the breakdown of de facto
relationships, and to the area dealt with under federal law.
Proposed subsection 90RC(2) describes the areas of law in which federal
law operates to override the application of state law.
Proposed subsections 90RC(3) to (5) then set out the exceptions to the
operation of subsection 90RC(2), where state and territory law will continue to
operate despite the operation of federal law under the provisions of the Bill.
For example, under proposed subsection 90RC(3), state law will apply to
a de facto relationship if the geographical requirements under proposed
sections 90SD or 90SK cannot be met. The Bill gives two examples, including the
Abbey and Bob are parties to a de facto relationship that has
broken down, and have never been ordinarily resident in a participating
jurisdiction. Subsection (3) has the effect that State law will govern
financial matters arising out of the breakdown of their relationship.
Declaration of the existence of a
de facto relationship – new section
In his second reading speech, the Attorney-General observed:
A major difference between a marriage and a de facto
relationship is establishing when a de facto relationship has commenced or
ended...In the case of a de facto relationship, identifying whether a
relationship existed, and when it was on foot or not, can be...difficult.
Proposed section 90RD therefore enables the court to make a declaration
about the existence of the de facto relationship for the purposes of
maintenance and property proceedings under Part VIIIAB. This declaration can
also declare certain other matters relating to the existence of the
- the period or periods of the de facto relationship;
- whether there is a child of the de facto relationship; and
- when the relationship ended.
The EM states that the aim of section 90RD is to facilitate early
determination of these 'gateway issues' that parties are required to establish
for the application of Part VIIIAB.
A person affected by a section 90RD declaration may apply for a declaration to
be varied or set aside if new facts or circumstances arise.
Proposed section 90RG imposes a geographical requirement – that one of
the persons about whom the declaration is sought was ordinarily resident in a
participating jurisdiction when the primary proceedings commenced.
Maintenance and property orders –
Division 2 of Part VIIIAB
Application of Division 2
Under proposed section 90SB, before making a maintenance or property
order under Division 2,
the court must be satisfied that either:
- the relationship lasted for a period, or periods, totalling 2
- there is a child of the de facto relationship (as defined in
section 90RB); or
- the party to the de facto relationship who applies for the order
or declaration made substantial financial or other contributions
and serious injustice would result to that party if the order or declaration
was not made; or
- the relationship is or was registered under a prescribed state or
The EM states that this requirement 'is derived from equivalent
provisions operating under State law before the commencement of these
Division 2 ceases to apply in relation to a de facto relationship if the
parties marry each other – in which case, existing Part VIII of the Family Law
Maintenance orders – Division 2,
Subdivisions A and B
Proposed section 90SE allows the court to make orders for the maintenance
of one of the parties to the de facto relationship after the breakdown of that
relationship. According to the EM, 'this largely replicates the effect of
section 74 in relation to parties to a marriage' under the existing Part VIII
of the Family Law Act.
Proposed section 90SF sets out matters for the courts to take into
consideration when making a maintenance order. These matters replicate the
matters which courts are required to consider under subsection 75(2) of the
Family Law Act.
Proposed section 90SD contains a geographical requirement linking the
parties to the de facto relationship to a participating jurisdiction before a
court can make a maintenance order in relation to a de facto relationship.
Property orders – Division 2,
Subdivision C contains provisions enabling the court to make a
declaration of property interests (proposed section 90SL) and orders altering
the property interests of parties to de facto relationships (proposed section
90SM). Proposed subsection 90SM(4) sets out the factors the court must take
into account when considering what property settlement order should be made (if
Proposed section 90SK contains a geographical requirement linking the
parties to the de facto relationship to a participating jurisdiction before a
court can make a property order in relation to a de facto relationship.
Financial agreements – Division 4 of
Division 4 of proposed Part VIIIAB would allow parties to a de facto
relationship in participating jurisdictions
to enter into binding financial agreements (Part VIIIAB financial agreements).
These provisions allow parties to enter into agreements about how they will
distribute their property or financial resources or maintain each other if
their relationship breaks down. Agreements can be made before
a de facto relationship, or after
it has broken down.
A Part VIIIAB financial agreement can include another person or persons
as a party to the agreement.
A financial agreement is binding if it complies with the requirements in
section 90UJ (for example, it must be signed by all the parties). A Part VIIIAB
financial agreement will not, however, have force unless a separation
declaration is made under proposed section 90UF. The EM explains that:
This replicates the anti-avoidance effect of section 90DA in
relation to Part VIIIA financial agreements...The aim of the provision is to
ensure that agreements...are genuine arrangements, and are not used to defeat
the interests of creditors.
A Part VIIIAB financial agreement ceases to be binding if the parties to
the agreement marry each other (proposed subsection 90UJ(3)).
Provisions relating to maintenance and property orders in proposed
Division 2 do not apply to matters that are dealt with in a Part VIIIAB
Superannuation splitting – Schedule
Items 51 to 78 of the Bill propose to extend existing Part VIIIB of the
Family Law Act to provide for superannuation splitting to de facto couples. In
his second reading speech, the Attorney-General explained that, for the first
...the Bill will allow de facto couples to split their
superannuation interests in the event of a breakdown in that relationship. This
will enable recognition of the important contribution many de facto couples
make over the course of their relationship to each other's superannuation to be
reflected in the proper apportionment between them of what they have
accumulated for their retirement. This is an important benefit that has been
available under the Family Law Act for married couples since 2002.
Part 2 of Schedule 1 of the Bill contains transitional provisions relating
to the application of the Bill to de facto relationships to which state or
territory laws currently apply. Schedule 2 to the Bill makes consequential amendments
to related Commonwealth legislation flowing from the extension of the Family
Law Act to de facto financial matters.
Schedule 3 contains other amendments to the Family Law Act relating to:
- financial agreements between married couples (Part 1 of Schedule
- separation declarations (Part 2 of Schedule 3);
- superannuation splitting (Part 4 of Schedule 3); and
- the definition of 'matrimonial cause' to cover proceedings by
third parties in relation to binding financial agreements (Part 3 of Schedule
Schedule 4 proposes to amend subsection 60I(8) of the Family Law Act to
allow family dispute resolution practitioners to give an additional certificate
to parties who attend family dispute resolution. It also makes a minor drafting
correction to paragraph 330(4)(ba) of the Proceeds of Crime Act 2002.
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