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Family Law

April 15th, 2009 Leave a comment Go to comments

A de-facto relationship is a relationship in which two people are co-habiting without being legally married and must be heterosexual to be recognised by the courts. This type of relationship increased greatly from 1971 to 1082 as people were not economically and physically willing to enter into a marriage. In 1984, a statutory basis was given to de-facto relationships with the passing of the De Facto Relationships Act 1984 NSW. This act provided a legal definition of De Facto relationships, eligibility criteria and protection of individuals on the breakdown of such a relationship. The issues dealt with by the Act include property rights, maintenance, care of children and inheritance. Property rights include: Under common law, a person in a de facto relationship has no right to property unless it was in that person’s name. Maintenance: there was no legal obligation to pay spousal maintenance. Even if one of the partners did not have a job and was looking after a child full time. Up until 1984 this was the case. Under The property (relations) act 1984 either partner of a de facto relationship can initiate legal proceedings requestion periodic maintenance against the other partner on a restricted basis. The court will force payment to the claiming party if they cannot support themselves adequately because of full time child rearing and lack of independence due to the relationship. Care of children: issues regarding children are handled in the same way as the children from marriages. Since the Family Reform Act 1995, decisions concerning children from de facto relationships are administered through the family law court regardless of whether the children are from a previous marriage. Inheritance: spouse and children may not be entitled to property upon the partner’s death. Unlike marriage there is no formal start or end to a de facto relationship.

Davies Vs Sparkes 1990 confirmed the common law definition of a de facto relationship.
A de facto relationship must be at least two years in duration for the law to operate and govern the associated parties of a de facto relationship effectively.

Domestic violence within a de facto relationship is treated the same as it would be treated in any other form of relationship, in the sense that it still has the same physical, sexual, emotional, or psychological repercussions. The existence of the Family Law Act 1975 does not and cannot extend to de facto spouses (constitutional defect). Accordingly, the family law court has no power to issue injunctions to restrain domestic violence within a de facto relationship. Conversely, the legal remedies against domestic violence in New South Wales have been extended and improved by the Crimes (domestic violence) Amendment Act 1982. This act applies to both married persons and people in de facto relationships. Despite this act, people in de facto relationships still do not have the same protection against domestic violence as people in marriages. Legal action to prevent domestic violence can be taken by applying for an AVO/ADVO (Apprehended domestic/ violence order), pressing criminal assault charges or by applying for an injunction.

While people assume that the law constantly and consistently achieves its objectives; de facto relationships must be analysed and the associated issues in terms of resource efficiency, the concept of equality, enforceability, accessibility and protection. Equality is complicated when it comes to the issues I have discussed above relating to de facto relationships. De facto relationships cannot be treated the same as marriage; this is due to a constitutional defect that forbids the Commonwealth government to establish laws beyond the nuclear family. Conversely, the fundamental aspect of most areas of family law is to protect those who are disadvantaged, provide rights to individuals, enforce responsibilities on individuals and couples and resolve disputes with minimal disruption.

This has been achieved with the enactment of the Property Act 1984 NSW and the various amendments made to it in 1999. The purpose of this legislation was to divide property in the event of a breakdown of a de facto relationship, permit maintenance payments, regulate the care of children and examine the validity of any cohabitation and separation agreements.

In relation to property disputes, the Property Act 1984 is used by creating direct and indirect legal rights and obligations between the separating parties. It gives the supreme, district or local court power to divide the property according to the concepts of justice and equity.

A prime function of the legal system in achieving justice to parties of a de facto relationship is protection. This is especially required for children and victims of domestic violence. However this concept has extended to those who have been disadvantaged at law. E.g.: the original Property (relationships) act 1984 did not recognize same sex de facto relationships, therefore significantly disadvantaging individuals involved in the liaisons. This was changed in 1999 when the Property (relationships) Amendments Act was enacted.

In areas of spousal and child maintenance the federal government has established enforcement procedures that regulate the non-payment of child support. Such issues will be referred to the Child Support Agency (CSA) who will collect and enforce payments. The CSA can garnishee wages, incept tax refunds or sell personal property to collect money owed. If these procedures do not work the CSA can commence court action.

With regard to care of children, the Family Law Reform Act 1995 applies to all children, not just the children of marriage as originally stated by the Family Law Act 1975. This has significantly improved the efficiency of the legal system and the extent to which judgments enforceable.
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