The Australian Connection – Update from Across the Ditch

Australia and New Zealand have close economic relations.  We also have close personal relations, with many of us having friends and family living in Australia.  The flow of New Zealanders to Australia, in search of a better life, continues. 

In 2002 New Zealand took the controversial step of extending the reach of its matrimonial property legislation to de facto couples.

Australia will follow suit soon when their Family Law Amendment (De Facto Financial Matters & Other Measures) Act 2008 comes into force.  Previously, de facto couples were required to resolve their property and maintenance disputes in state and territorial courts under state and territorial legislation, rather than federal legislation.  In general terms, de facto entitlements, following a break up were assessed on the basis of contributions.  On the other hand the entitlements of husband and wife considered:

• the assets and liabilities of the husband and wife;

• their respective contributions (financial and otherwise); and

• the future needs of the parties arising from their age, health, income earning capacity, care of children and the effect the marriage had upon their earning capacity.

The new legislation will give de facto couples the right to have their property and maintenance disputes determined by federal courts in accordance with the same principles that currently apply to married couples.

For the first time in many states, the court will be able to order that maintenance be paid to a former de facto partner and de facto partners may be ordered to split their superannuation interests as part of a financial settlement.

The Act is to apply to de facto couples who separate on or after the commencement of the legislation, which is expected to be 1 March 2009.  Before a relationship is classified as a de facto relationship for the purposes of the Act, it must be established that one of the following apply:

• That the period (or total period) of the relationship is at least two years.

• There is a child of the relationship.

• That one party made a substantial contribution to the parties' property (including as a homemaker or parent) and that a failure to make an order or declaration would result in serious injustice.

• That the relationship was registered under the law of a particular State or Territory.

The new Act is to apply in all states and territories in Australia, except Western Australia and South Australia.  Tell your friends and family about this major change to the law.  People who have decided to remain in a de facto relationship rather than marry will need urgent legal advice from an Australian lawyer if they are to protect their property before the Act comes into force.

We have contact with lawyers throughout Australia if you or friends or family need advice from an Australian lawyer.

Winner of the Guardian Trust Family Law Award at the 2008 New Zealand Law Awards

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Last updated: 24 February 2009

The contents of this publication are general in nature and are not intended to serve as a substitute for legal advice on a specific matter. In the absence of such advice no responsibility is accepted by Brookfields for reliance on any of the information provided in this publication.