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Family Law

April 15th, 2009 No 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.
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