New Reforms Relating to Property Disputes

The Commonwealth Government introduced significant reforms to the law relating to property disputes between defacto and same sex couples as of 1 March 2009, those changes are set out in The Family Law (De Facto Financial Matters and Other Measures) Act 2008 (“the Act”)which commenced on 1 March 2009.

As of 1 March 2009 property disputes between defacto and same sex couples may be determined by the same process and the same courts as married couples. The Federal Magistrates Court and Family Court of Australia now have jurisdiction to deal with property disputes between defacto couples who reside all in state except Western Australia and South Australia.

Prior to these reforms defacto couples in Victoria were required to rely on Part X of the Property Law Act 1958 (Vic). The parties were required to bring civil litigation proceedings in either the County or Supreme Court of Victoria in order to have the court determine a property adjustment between them.

Section 90SB of the Act sets out the eligibility criteria a party must meet to apply for a property adjustment under the Act, this includes a requirement that the parties must have lived together in a relationship for 2 years unless there is a child of the relationship or the parties meet the further limited circumstances as prescribed by the Act.

The reforms of most significance include the power of the court to split the superannuation interests of the parties and to order payment of spousal maintenance to a party (in limited circumstances) s90SE. These orders were not previously available to the state court in defacto property proceedings.

Another important feature of the Act is that the considerations to be taken into account by the court when determining an adjustment of property between defacto couples now mirror those considerations taken into account in matrimonial proceedings. These considerations are found in s 90SM(4) of the Act and include the following:

• Age and state of health of each of the parties
• Income, property and financial resources of each of the parties
• Whether either party has the care or control of a child under 18 years
• Duration of the relationship and the impact it has had on a parties earning capacity
• Commitments of the parties to support themselves and others
• A Standard of living that in all the circumstances reasonable.