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 To wed . . . or not to wed ? |
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Introduction
The moral values of society have undoubtedly changed considerably over the past fifty years or so. The demographic landscape of relationships has altered to the point of being nearly unrecognisable when compared to statistics of the 1950s. Current trends indicate the emerging tendency for couples to live together in a defacto relationship before marrying (if marrying at all), higher incidence of same sex relationships, the later ages at which people marry and have children and the higher rate of divorce, just to mention a few. Since 1976 when the Family Court of Australia was created there have been 2.4 million marriages in Australia. In the same period, the Court has granted 930,000 applications for dissolution of marriage and has had filed around 350,000 applications for property settlement.
Putting aside controversial moral observations about these trends there are a number of purely legal consequences of which couples should be aware. Specifically in the realm of Family Law, the rights of individuals at the end of a relationship can vary considerably depending on whether they were living in a married relationship or a de facto (or domestic) relationship.
What about the children?
The care, control and welfare of the children of any type of relationship are governed by the Family Law Act. This law directs the court to consider 'what is in the best interest of the child?' before making any decisions which will effect them. The type of relationship out of which the child was born (whether marital or de facto or no relationship at all) will not have bearing on the decision of the court. The court will also take this stance in relation to child support. Whether the parents where married or not will not effect the outcome in these proceedings.
What about property settlement?
This is an area which is substantially affected by whether or not the parties were married. There are two different Acts of Parliament which cover each type of relationship. The Family Law Act is a nationwide law and relates only to property between married parties. Each individual state has similar laws concerning the property of parties to a de facto relationship. In New South Wales these laws are found in the Property (Relationships) Act. Each of these laws treats the property of the parties on a very different basis. While the majority of people are able to come to an agreement about the division of property upon the end of a relationship those who cannot agree will need to apply to courts.
Property settlement from a marital relationship
Property settlement from a marital relationship can be heard in the local court (where the pool is less than $40,000 or the parties have come to an agreement) or more commonly in the Family Court.
The court is able to make orders concerning the ownership of and/or division of property in a 'fair and equitable' manner according to the individual circumstances of the case. An assessment of what is fair and equitable will include a consideration of the financial and non-financial contributions of the parties, any indirect contributions including the care of children and homemaker contributions, and the future needs of the parties.
Property settlement from a defacto relationship
The whole process of arranging a property settlement from a defacto relationship is different to that of a marital relationship. Whether the law will apply to the relationship will depend on a number of factors: the nature of the relationship, duration of relationship, date of separation and whether any substantial financial or non-financial contributions have been made to the relationship including those made to the home and care of children. Unfortunately, any contribution as homemaker or parent will be given less weight in a defacto relationship than in a marriage.
Whilst the Family Court will consider any future needs of the parties to a marriage the defacto law does not, thus making it more difficult, particularly for partner who has the care of the children and who has made considerable time and career sacrifices to care for the children and the home.
A claim must be made to the court within 2 years after the date of separation. The court in which the claim is made will depend on the amount of the claim. If the claim is less than $20,000 the matter is heard in the Local Court. If the claim is less than $250,000 it is heard in the District Court. Any claim above $250,000 is heard in the Supreme Court. Defacto property matters are not heard in the Family Court.
What then is a defacto relationship? The law considers a person is in a defacto relationship if two people over the age of 18 who are not siblings or a parent or child of the other live together as a couple. This definition includes same sex couples. This will not automatically mean that the court considers the persons are in a defacto relationship. Other relevant factors such as the length and nature of the relationship, whether the persons finances are intertwined, whether others see the persons as being in a defacto relationship and whether the relationship was intended to be permanent.
To wed ... or not to wed?
As always the decision will be a personal one. No one ever thinks about the end of a relationship when they are consumed with its romantic beginnings. It is now possible for couples who are intending to get married or continue in a defacto relationship to make a binding financial agreement (commonly called a prenuptial or cohabitation agreement) detailing how they expect their financial affairs are to be treated upon the unfortunate event of the end of their relationship. If you have any queries in relation to anything mentioned in this article you should talk to an accredited family law solicitor.
February 2001
February, 2001
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