Breaking Up Is Harder To Do

A family law expert has warned separating couples they may be caught out by recent legislative changes.

Law Institute of Victoria Family Law Section chair Stephen Winspear said the changes had particular ramifications for de facto and same sex couples as they altered approaches to the division of assets, including superannuation and maintenance arrangements.

Mr Winspear said changes to the Family Law Act 1975 (Cth) had revised traditional thinking and now allowed for the property of de facto and same-sex couples to be divided in the same way as if the parties had been married. He said couples who separated after two years, or had a child together, were now basically treated as if they had married.

These rights were further solidified in Victoria when the Relationships Act 2008 (Vic) established a Relationships Register for the registration of domestic relationships, irrespective of gender.

“I am not sure that Parliament appreciated the sort of philosophical ramifications of passing the new Family Law Act provisions,” Mr Winspear said. “You could now question the reasons for marriage because you have got the protection of the law for a de facto relationship which is exactly the same protection that you get once you are married. In practice, the person who is in a financially weaker position will very likely do better under the new legislation.”

The amendments also allow for superannuation of de facto couples to be split, spousal maintenance and property adjustments between domestic partners.

Recent changes to the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) allows for judges to order that former partners remain living within range of each other should they have a shared custody agreement.

In addition, an important legislative change to the Family Violence Protection Act 2008 allows police to issue on-the-spot family violence safety notices.

In coming months, the merger of the Family Court of Australia and the Federal Magistrates Court is expected to simplify the procedures for parents in family law cases.

Mr Winspear has advised those in the midst of a relationship breakdown to seek the advice of an accredited family law specialist with a greater understanding of the new laws and their implications.

More information

From the LIV Bookshop: Mediating with Families, by L Fisher and M Brandon, 2009, $90 and Australian Master Family Law Guide, 2009, $150

Disclaimer: The information in this article is not intended to be a complete statement of the law relating to the issues raised. Accordingly, no person should rely on this information without first obtaining specific advice from Warwick Teasdale, Stephen Gregory, Barbara Watson or Paula Leslie of our office.