Explanatory MemorandumCirculated By Authority of the Attorney-General, the Honourable Robert Mcclelland MP
The Family Law Amendment (De Facto Financial Matters and Other Measures) Bill (the Bill) amends the Family Law Act 1975 (the Act) to provide for opposite-sex and same-sex de facto couples to access the federal family law courts on property and maintenance matters. The Bill also amends the Act to provide for amendments relating to financial agreements between married couples and superannuation splitting, and for an amendment to the Act providing for certificates given in relation to family dispute resolution.
The Bill relies on referrals by States to the Commonwealth in accordance with subsection 51(xxxvii) of the Constitution. 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. These State referral Acts are expected to come into effect on proclamation, which is expected to be timed with proclamation of the commencement of the operative amendments in Schedule 1 to the Bill.
The primary objective of the Bill is to extend the financial settlement regime under the Act to parties to a de facto relationship. This is achieved by conferring jurisdiction on certain courts in 'de facto financial causes' involving parties to de facto relationships, and providing a new Part VIIIAB of the Act (and amendments to existing Parts VIIIAA and VIIIB) to allow the court to make orders in those proceedings covered by the definition of 'de facto financial cause'.
The Bill provides that a person is in a de facto relationship with another person if they are not married or related to each other by family where, having regard to all the circumstances of the relationship, they have a relationship as a couple living together on a genuine domestic basis.
Presently, the financial arrangements between separated de facto couples are subject to State and Territory law, and these laws vary between jurisdictions. 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 Bill will also 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 litigation. Also, the Bill will enable one court exercising jurisdiction under the Act, such as the Family Court of Australia or the Federal Magistrates Court, to deal in the one proceeding with both financial and child-related matters arising between separated de facto couples.
The Bill creates a new 'de facto financial cause' in subsection 4(1) of the Act. This provides jurisdiction for de facto financial matters in all financial matters presently available under the Act between parties to a marriage, such as proceedings for distribution of property or financial resources, or for provision of maintenance between parties to a de facto relationship, and proceedings involving third parties, binding financial agreements, and related bankruptcy matters.
The Bill links the application of its provisions to 'participating jurisdictions' by requiring that a geographical nexus be established in relation to those jurisdictions in a de facto financial matter brought under the provisions of the Bill. The Bill will apply in the Territories by virtue of section 122 of the Constitution.
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 federal provisions and State and Territory laws are set out in new section 90RC.
Schedule 1 to the Bill contains the operative amendments to the Act that extend its operation to de facto financial matters. This occurs principally by insertion of new Part VIIIAB, dealing with maintenance, declaration and alteration of property interests (Division 2), orders and injunctions binding third parties (Division 3), financial agreements (Division 4), proceeds of crime and forfeiture (Division 5), and instruments not liable to duty (Division 6).
Under these amendments, the Act will apply to allow the court to make orders in de facto financial matters if:
- the de facto relationship broke down after the commencement of the Act
- the conditions relating to length of relationship or other matters are met
- the application is brought within required time limits
- the geographical nexus with a 'participating jurisdiction' is satisfied when the application is made, if all States have not referred power, and
- the proceedings are not otherwise determined to be a matter for State and Territory law by the effect of transitional provisions in Part 2 of Schedule 1 to the Bill.
Schedule 2 to the Bill contains consequential amendments to other related legislation. Generally, these consequential amendments flow from the extension of the Act to de facto financial matters, and therefore ensure that references to matrimonial property settlements under the Act (such as 'spouse' or 'property proceedings' or 'Part VIII') extend also, where appropriate, to financial proceedings under the Act between parties to a de facto relationship.
Schedule 3 to the Bill contains amendments relating to financial agreements between married couples, separation declarations and superannuation splitting. It also amends the definition of 'matrimonial cause' to cover proceedings by third parties in relation to binding financial agreements.
Schedule 4 to the Bill contains an amendment to subsection 60I(8), 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 .