House of Representatives

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

Second Reading Speech

Mr McClelland (Attorney-General)

I move:

That this bill be now read a second time.

The Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 introduces significant reforms to allow opposite-sex and same-sex de facto couples to access the federal family law courts on property and spouse maintenance matters on relationship breakdown.

This bill is long overdue, and gives effect to an agreement between the Commonwealth, states and territories made as far back as 2002. The bill follows the enactment of legislation by a majority of states referring necessary powers to the Commonwealth.

The reforms will provide greater protection for separating de facto couples and simplify the laws governing them. The reforms will also bring all family law issues faced by families on relationship breakdown within the federal family law regime. The federal family law courts are the specialist courts in Australia with vast experience in relationship breakdown matters. They also have procedures and dispute resolution mechanisms which are more suited to handling family litigation arising on relationship breakdown.

The bill is consistent with the government's policy not to discriminate on the basis of sexuality. The bill applies to both opposite-sex and same-sex de facto couples. This bill amends the Family Law Act 1975 and related legislation to create a Commonwealth regime for handling the financial matters of de facto couples on the breakdown of their relationship. By providing a consistent and uniform approach for de facto relationships, this bill will alleviate the administrative and financial burden currently faced by de facto couples as a result of multiple de facto regimes applying across the states and territories. It is also a more effective use of court resources, legal aid and the like.

The current state and territory de facto property settlement and spouse maintenance laws are far from uniform.

De facto couples currently have different rights in different states and territories. This is unsatisfactory as it is not uncommon nowadays for families to move across state or territory borders, or to have property or other financial resources in different states and territories. These reforms will provide a national and uniform system.

Also, where de facto couples have children and their relationship breaks down, currently they can find themselves with children's issues in one of the federal family law courts and property issues remaining 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 court systems.

Clearly this is not the most efficient and effective way to resolve these matters.

I am glad to say that this bill will address and resolve these issues.

The bill enables federal family law courts to deal in the one proceeding with both financial and child related matters arising for separated de facto couples.

De facto couples will be able to obtain a property settlement, split their superannuation interests and make financial agreements, all recognised and enforceable by the federal family law courts.

Most states agreed in 2002 to provide the Commonwealth with a reference of power concerning the financial matters relating to the parties of a de facto relationship arising out of the breakdown of that relationship. Since that date, New South Wales, Victoria, Queensland and Tasmania have passed legislation referring power to the Commonwealth. In the ACT, the Northern Territory and Norfolk Island, the Commonwealth will rely on its power over territories to apply the new legislation in those jurisdictions.

The bill will require parties to demonstrate a geographical connection such as residence in a state that has referred power or a territory to gain the benefits of the new approach.

I will now briefly outline some of the key aspects of the approach to de facto financial matters introduced by the bill.

What relationships will the bill cover?

Before a court can make an order, it will need to be satisfied that the de facto relationship lasted for at least two years, that there is a child of the relationship or that a party to the relationship made a substantial contribution to the relationship and it would cause serious injustice not to grant an order. The bill also extends to couples whose relationship both satisfies the definition of 'de facto relationship' in the references of power and is registered under state or territory law.


A major difference between a marriage and a de facto relationship is establishing when a de facto relationship has commenced or ended. With marriage, it is very clear when a couple have commenced their marital relationship because of the ceremonial requirements and declarations made before witnesses and authorised celebrants.

Equally, it is usually easier to determine the end of a marriage because of the formality of divorce.

In the case of a de facto relationship, identifying whether a relationship existed, and when it was on foot or not, can be more difficult. To assist the courts and the parties in these situations, the bill provides courts with the ability to make a declaration about a range of important characteristics of a de facto relationship.

There are other benefits for de facto couples under the new national regime as well.

De facto maintenance and property orders

The bill will allow a court to make orders for the maintenance of one of the parties to the de facto relationship, or an order declaring or altering the interests or rights of a party to a de facto relationship in respect to property.

Superannuation splitting

For the first time, 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, but not for de facto couples.

Binding financial agreements

De facto couples in participating jurisdictions will also be able to enter into binding financial agreements. These allow parties to enter into agreements about how they will distribute their property or financial resources or maintain each other in the event that their relationship breaks down. Agreements will be possible before or during a de facto relationship, or after it has broken down.

Other amendments

The bill makes a number of other minor amendments to improve the effectiveness of the Family Law Act.

Full details of the measures contained in this bill are contained in the explanatory memorandum to the bill.

This much needed reform will give separating de facto couples the same rights as divorcing couples under the comprehensive Commonwealth family law system. It provides a consistent approach to de facto property disputes across state and territory borders.

I commend the bill to the House.

Debate (on motion by Mr Farmer) adjourned.