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Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008

Supplementary Explanatory Memorandum

Circulated by authority of the Attorney-General, the Honourable Robert McClelland MP


The Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 (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 property settlement and spouse maintenance regime. The Bill implements references of power by New South Wales, Victoria, Queensland and Tasmania to the Commonwealth in accordance with subsection 51(xxxvii) of the Constitution.

The Government amendments implement the bipartisan recommendations for amendments to the Bill made by the Senate Legal and Constitutional Affairs' Committee in its' report on the Bill to:

amend the definition of 'child of de facto relationship' in proposed section 90RB of the Bill and the parenting presumptions in section 60H of the Act to allow children of same-sex relationships to be recognised as a child of the relationship for the purposes of the entire Family Law Act 1975 (Recommendation 1) and
that the transitional provisions in the Bill be amended to enable de facto couples to 'opt in' to the new regime by mutual agreement, subject to appropriate safeguards, where their relationship breaks down before commencement and their property or maintenance matters have not been finalised before commencement (Recommendation 2).

The amendments also provide power for courts to make injunctions relating to the property of de facto couples, including orders for the 'use or occupancy' of former residences that the couple had, in a similar way to the power that the courts have in relation to married couples.

The amendments also provide for changes to allow for the term a 'child of a person for the purposes of the Family Law Act' to apply in a range of other Acts being amended by the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - Superannuation) Bill 2008 and the Same-Sex Relationships (Equal Treatment in Commonwealth Laws - General Law Reform) Bill 2008 by:

including commencement provisions around the definition of 'de facto relationship',
including application provisions to set out the extent to which the amendment of paragraph 60H(1) of the Act affects provisions in the Child Support, Family Assistance, Social Security, National Health, Aged Care and Health Insurance legislation before specified dates,

The amendments also address a range of essentially technical issues that have arisen in consultations on the Bill, including in consultations with the Family Law Section of the Law Council of Australia, by:

amending new paragraphs 90SD(1)(b) and 90SK(1)(b) of the Bill to provide for couples who have lived in a participating jurisdiction and also in a non-referring State during their relationship to be able to obtain financial orders if they were ordinarily resident in a referring State or in a Territory when their relationship broke down
amending the definition of 'declaration time' in new subsections 90UF(6) and 90DA(5) so, where a separation declaration is required for a financial agreement and both parties have signed the agreement, the 'declaration time' is measured from the time that the declaration is first signed by one of the spouse parties
including a note under new subsection 90UE(1) to alert the reader to the existence of significant transitional provisions that may not appear in a reprint of the Act
amending subsections 60I(5) and 60I(6) to reflect proclamations made by the Governor-General in May 2008 that particular family dispute resolution provisions commenced on 1 July 2008,
making other technical drafting amendments to clarify the operation of the Bill.

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