Do you want to know more about key terms in de facto financial matters under the Family Law Act 1975? De facto financial matters typically refer to the financial aspects related to couples who are in a de facto relationship. A de facto relationship is a legally recognised relationship between two people who are not married. However, these couples usually live together on a genuine domestic basis.
The specific details and laws regarding de facto relationships can vary by jurisdiction. Therefore, it’s essential to learn laws about de facto financial matters for accurate information. Read on to know more about key terms in de facto financial matters.
Key Terms in De Facto Financial Matters
1. Property Settlement: This involves the division of assets, debts, and financial resources acquired during the relationship. It may include assets including:
- real estate,
- bank accounts,
- investments, and
2. Spousal Maintenance: This could involve one partner providing ongoing financial assistance to the other partner after the relationship ends. This financial assistance is commonly referred to as spousal maintenance or support.
3. Superannuation: Superannuation refers to retirement savings and is an important consideration in de facto financial matters. In some jurisdictions, superannuation accumulated during the relationship may be treated as a joint asset and subject to division upon separation.
4. Child Support: If the de facto couple has children, child support obligations may arise. Child support involves the financial responsibility of both parents to contribute to the financial needs of their children. Calculating child support generally considers factors such as the income of both parents, the number of children, and custody arrangements.
Section 90RA: Participating Jurisdictions
Section 90RA about key terms in de facto financial matters defines “participating jurisdictions” and “referring states”. This is in relation to financial matters concerning de facto relationships. Here’s a breakdown of what the section means:
(1) Participating Jurisdictions: The participating jurisdictions are the states and territories that the legislation covers.
(2) Referring States: A referring state is a state that has referred or refers to the Commonwealth Parliament (the federal government) financial matters related to de facto relationships resulting from the breakdown of those relationships.
- The state’s parliament must have made a referral to the federal parliament regarding financial matters of de facto relationship parties.
- The referral must be made under the specific provisions of the Constitution and cover financial matters that are not already within the legislative powers of the Commonwealth Parliament.
Note: Some states may refer only to a limited class of matters. On the other hand, others may refer to a broader range of financial matters.
Western Australia Exception
According to Section 90RA about key terms in de facto financial matters, Western Australia has not considered a referring state for the purposes outlined above. However, specific provisions apply if the Parliament of Western Australia has referred to superannuation matters. This is in relation to de facto partners to the Commonwealth Parliament under the Commonwealth Powers (De Facto Relationships) Act 2006 (WA).
Termination of Reference
Section 90RA about key terms in de facto financial matters also discusses the termination of reference. A state remains a referring state even if its law states that the reference made to the Commonwealth Parliament will terminate in certain circumstances. What if the state’s reference described in subsection (2) is terminated? If this is the case, the state will no longer be considered a referring state.
Section 90RB: Meaning of Child of a De Facto Relationship
Section 90RB about key terms in de facto financial matters defines the meaning of a “child of a de facto relationship”. Here’s an explanation of the section:
Child of a de facto relationship: A child is considered a child of a de facto relationship if the child is adopted or a stillborn child. In other words, the child has a parentage connection to both individuals who are in the de facto relationship.
Note: Subdivision D of Division 1 of Part VII provides guidance or specific rules for determining who is considered a child of a particular person.
Other Key Terms in De Facto Financial Matters
- Negotiation and Mediation: The first step is to try to reach an agreement through negotiation and mediation. This involves discussing and working out the division of property, assets, debts, and financial resources acquired during the relationship.
- Financial Agreement: If both parties reach an agreement, they can formalise it through a legally binding financial agreement (BFA). This agreement sets out how the financial matters will be dealt with, and it requires both parties to obtain independent legal advice.
- Consent Orders: If an agreement is reached, the parties can seek consent orders from the Family Court or the Federal Circuit Court. Consent orders are legally binding and enforceable, and they outline the agreed-upon financial arrangements or parenting arrangements.
- Court Application: If negotiation or mediation fails, either party can apply to the Family Court or the Federal Circuit Court for a financial order. The court will consider various factors. This includes the financial contributions of each party, future needs, and the best interests of any children involved when making a decision.
- Parenting Plans: Parents need to work out suitable parenting arrangements that promote their children’s best interests. This includes decisions regarding their living arrangements, schooling, healthcare, and other important aspects of their upbringing.
Parents can write this down and outline the agreed-upon arrangements for their children. Although not legally binding, parenting plans provide a helpful framework for co-parenting. They can also be taken into consideration by the courts in case of disputes.
Section 90RC: Relationship with State and Territory Laws
Section 90RC outlines the de facto financial provisions and their application in the context of Australian law. These provisions encompass various sections and parts related to financial matters arising from the breakdown of de facto relationships.
The Section specifies that these provisions should take precedence over State and Territory laws that deal with financial aspects of de facto relationship breakdowns, as long as those laws explicitly refer to de facto relationships.
However, there are exceptions, including:
- in cases where there is an insufficient link to certain jurisdictions, or
- where specific circumstances apply, such as financial agreements or laws that facilitate the operation of the Act.
Additionally, there’s a provision that allows for the exclusion of certain State or Territory laws if they are prescribed as such in regulations.
Example: Abbey and Bob are parties to a de facto relationship that has broken down, and have never been ordinarily resident in a participating jurisdiction. One point in the Section has the effect that State law will govern financial matters arising out of the breakdown of their relationship.
How We Can Help De Facto Partners?
Family law matters, including those related to de facto relationships, are complex. Moreover,some of the laws governing them can vary. We at JB Solicitors can help clients gain a clear understanding of their rights, obligations, and entitlements under the law.
Our family lawyers can explain the relevant legal principles, guide you through the process, and help you make informed decisions.
Contact us today if you need to understand more key terms in de facto financial matters.