De Facto Relationships: 'Whole New Ball Game'

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15% of all Queensland couples live in a de facto relationship

In December 1999, new laws were finally (but very quietly) passed which change forever the way in which disputes between de facto spouses, are resolved.

Until then, all disputes between de facto couples, upon the breakdown of their relationship, were resolved, not by an Act or a piece of legislation (such as the Family Law Act applies to married couples) but by a body of law known as the Common Law. It was antiquated, vague and complex. The courts were not making matters any easier by constantly changing their approach in how the Common Law should be applied - in one case applying a strict interpretation (rule) to otherwise a more liberal approach (discretion). It was extremely hard to predict a likely outcome. Any litigation in the courts involved a huge risk.

The new Act known as the "Property Law Amendment Act 1999" introduces an entirely different approach. The new law only applies to de facto couples who separated after 21 December 1999. There are several striking features of the Act. Firstly, it recognises same-sex marriages. The Act defines a de facto spouse as being "either one of two persons, whether of the same or opposite sex, who are living or have lived together as a couple." They are not a "couple" if they simply share a home together. They must "live together on a genuine domestic basis in a relationship based on intimacy, trust and personal commitment to each other". Obviously it is only early days but it will be interesting to see and follow the first case where the main, or one of the issues, was whether there was or was not "intimacy, trust or personal commitment", however that may be defined.

The new Act also now formally recognises, for the first time, Cohabitation and Separation Agreements, although those agreements can still be declared invalid if the court considers it unfair to enforce them. Unless the court can find some serious injustice arising from it or circumstances having arisen since the agreement was made, the court cannot make any orders which are different to the agreement.

In a novel approach, the new law now provides that even if the de facto couple are still living together in their de facto relationship, the court can make a declaration as to what their respective rights or title are in certain property.

Departing from the old Common Law system and now adopting similar wording and approach to that set out in the Family Law Act, the court will now make its order based on what "it considers just and equitable". For the new law to apply in resolving property disputes between de facto couples, there are some golden rules:

(a) the couple must have been living together in a de facto relationship for not less than 2 years; and/or
(b) there is a child of the de facto couple who is under the age of 18 years.

If you do not qualify under either (a) or (b) above then you must be able to show that you have made substantial contributions as a result of which it would be unjust not to make an order. "Substantial contributions" include financial and/or non-financial contributions made directly or indirectly by or for the de facto spouse towards acquiring, conserving or improving the property and financial resources of either or both of them.

The following provisions represent the most radical departure from the old Common Law. Now, in a most significant way, the courts must consider not only contributions towards property and financial resources but also, to take a leaf out of the Family Law Act, the contributions of homemaker and parent to the welfare of the de facto couple or the family of the de facto couple, which would include their children.

Whilst the old Common Law was almost entirely focussed upon financial contributions by each of the parties, the new law focusses upon not only, but also most importantly, what lawyers refer to as the "future" factors, that is, matters other than contributions, which should be taken into account in order to achieve a result which is "just and equitable".

By taking these matters into account it is paramount to equating a de facto relationship to that of a traditional marriage relationship. Those additional matters include what child support might be payable; what effect the proposed orders will have upon the earning capacity of the parties; the age and health of both parties; the income, property and financial resources of each of the parties and their respective physical and mental capacities for gainful employment; whether either of the parties has the care of a child of the relationship or a duty to support any other person; what standard of living is appropriate in all the circumstances; and a host of other factors.

None of these matters were ever previously considered by courts in determining property settlement between de facto couples. These changes largely adopt factors and principles which are fundamental to settling matters between traditional married partners, including matters which are unique to the Family Law Act such as the power of the court to adjourn proceedings if there is likely to be a change in circumstances, such as one of the parties receiving a personal injuries award or a superannuation entitlement etc...

Whilst a lot of people will be upset by the changes for a range of different reasons, such as including same-sex couples or the fact that the changes have the effect of equating de facto relationships with traditional marriages, the real bonus is that it will seemingly make it a lot easier to predict a likely outcome and to help the parties settle.

There are two disappointing aspects of the new law. Firstly, there is still no provision for spousal maintenance. If a de facto wife separates and has the care of two or three young children and is unable to work or obtain employment and income, then unlike her married "sister" who in similar circumstances can apply for maintenance and support from her husband, the de facto wife is "on her own".

Secondly, it is a pity that the new law is unique to Queensland. Each of the States has their own de facto relationship law. They are all very different. It would have been preferable if all the States joined together and either agreed to adopt a uniform law, or alternatively, agreed to hand jurisdiction to de facto couples over to the Commonwealth and allow the Commonwealth government to introduce the one uniform law throughout Australia, just as it has done with the Family Law Act.