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New de facto laws - no ring, no problem!

Family Law: 22 March 2019

The Family Law Act 1975 now provides that de facto (including same sex) partners can make claims based on their future needs.  If one partner cannot earn as much as their former partner, has the care of children, is otherwise likely to be worse off financially than them in future, the Court can increase the size of that partner's entitlement to a share of the asset pool to attempt to compensate for the differences.

If the poorer partner is unable financially to support themselves and the wealthier partner has sufficient surplus income (that is, after they have met their own reasonable expenses) to support them, then with various qualifications, the poorer party may now be able to claim periodic or lump sum maintenance payments successfully. 

For the new laws to apply, the couple must have been living together on a "genuine domestic basis" and have either:

  • Been in the de facto relationship for two years;
  • A child (including one conceived by artificial means while they were partners);
  • Been in a registered relationship under the Victorian Relationships Act 2008; or
  • Have made such significant contributions, that it would be unjust for property settlement not to be made under the new laws.

It is possible for someone, including a married person, also to be in one or more de facto relationships at the same time!

Financial Agreements can be entered before, during or after a de facto relationship (or a marriage).  With some exceptions regarding maintenance claims and the care of children, they allow partners to contract out of their entitlements to a property settlement and/or maintenance pursuant to the Family Law Act and they aim to prevent future claims.  Both partners must have received separate independent certified legal advice, and a Solicitor's Certificate must be annexed to the Agreement. 

Increasingly, partners who wish to protect certain assets from claims or to have the certainty of knowing what they have agreed will happen with their assets if they separate, use Financial Agreements.  They can be particularly helpful for those who have been previously married and where one partner is or will be significantly more wealthy than their partner.

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