The Family Law Courts now have jurisdiction to determine the property and financial matters arising from the breakdown of a de facto relationship. To fall within the Court’s jurisdiction, the parties must have separated after 1 March 2009, and their relationship must meet the definition and threshold requirements of a de facto relationship set out in the Family Law Act 1975. For many couples, these matters will be contentious factual disputes.
If the criteria is not made out, an Applicant may be left to litigate their matter in the State Courts, or possibly, with no legal remedies available to them.It has been three years since the legislative which gave the Family Law Courts jurisdiction to deal with de facto relationships received Royal Assent. The legislative provisions were novel. Amongst other things, they extended to same sex relationships, and also to people who were already married (that is, it is possible to be married to one person and in a de facto relationship with another).
The amendments sparked some great interest in the community, with media outlets reporting on cases where unidentified ‘mistresses’ had pursued claims against their former lovers and had achieved generous out of Court settlements. Amongst the profession, we were all curious as to see how these new provisions would be interpreted and applied by the Family Courts. Previously the province of State jurisdictions, the Family Court would now be deciding whether those atypical relationships which present frequently in family law situations, would be determined to be a de facto relationship within the meaning of the amended Act.
We are only now just starting to see the first of the single instance decisions of the Family Court and the Federal Magistrates Court decided under the new legislative provisions. This paper looks at what can be gleaned from these first decisions, in particular, what is the relevance of the parties living together (or not), how are the provisions applied to same sex relationships, how are mistresses fairing in the new legislation and how are the threshold requirements being applied Just how easy (or difficult) is it to establish a de facto relationship under the Family Law Act as revamped.