As was well publicised in “Can Do” Newman’s recent election campaign, one of the election promises was to repeal the Act.

The new Attorney-General, Jarrod Bleijie, has indicated that a request has been made for a full legal brief from his Department about the legislation that allows same-sex partnerships with a view to implementing Newman’s plan to repeal the Act and if possible, make the repealing legislation retrospective.

 Below is a summary of the key elements of The Civil Partnerships Act 2011.

To qualify to enter a civil partnership:-

ü       You must not be married;

ü       You must not be in a recognised civil partnership;

ü       You must not be related to the proposed civil partner (the Act particularises such relations);

ü       Both must reside in Queensland;

ü       Both must be 18 years of over.

You may apply for registration of your relationship with Births, Deaths and Marriages, where there is a 10 day cooling off period between receipt of Application and the Registration of the partnership.  Alternately you may make a Declaration before a Civil Partnership Notary – which first requires a Notice of Intention to be filed with the Registrar 10 days prior to making such Declaration.

 A Civil Partnership is terminated in the following ways:-

1. By the death of either party;
2. By marriage of either party; or
3. By Order of the District Court where the parties have lived separately and apart for 12 months (this could include whilst living under the same roof) and one or both parties consider that there is no likelihood of reconciling the relationship.

The Act will impact on a wide variety of other legislation, including the Succession Act.  Entering or terminating a Civil Partnership may revoke certain provisions contained in a party’s Will.  Equally entering a Civil Partnership entitles either party to the same relief as de facto spouse may avail themselves to under the Family Law Act.

 Given the current State Government’s intentions with respect to the Civil Partnership Act, entering a civil partnership may be a futile exercise.  Importantly, however, as highlighted in our earlier Article “Same Sex… Same Rights” a same sex de facto couple has the same rights under the Family Law Act in respect of property settlement and spousal maintenance as a married couple… and those rights are here to stay.

If you are considering ending your marriage or de facto relationship, there a couple of practical things which can make the process a little easier from a legal point of view, including:-

1. Attending family counselling

Before making the decision to end a marriage or de facto relationship, you may benefit from taking some therapeutic counselling with your spouse.  It may be that there are no prospects of continuing the relationship, however the process may be used to discuss and reach agreement with respect to how to practically deal with the issues which arise from a breakdown in your relationship, including parenting arrangements, child support, spousal support and property settlement.

2. Attend upon a legal practitioner who specialises in family law

The stress of a breakdown in your relationship can be exacerbated by not taking specialist advice.  Even prior to making a decision to separate, much time, money and stress can be saved by apprising yourself of your rights and entitlements arising from the breakdown in your relationship.

3. Inform yourself

Take the time to inform yourself of the financial circumstances of your marriage or de facto relationship prior to proceeding with any separation.  There can be significant costs and delay in having to obtain documents and records such as bank statements, tax returns, financial statements, etc which are often kept within the family home.  Prior to separating, you should take copies of any such documents, which may become vital in later property settlement negotiations/proceedings.

4. Stay put

There is no legal obligation for one party to vacate the family home upon separation.  Often it is an economic reality that upon spouses deciding to end a relationship, they must remain under the same roof whilst working out a financial settlement.  A spouse who relocates from the family home often places themselves at a significant disadvantage tactically and economically.  Of course, your safety must always be your paramount consideration.

5. Social Media

Resist any temptation you may have to bad mouth or denigrate the other spouse on any social media sites.  A moment’s satisfaction may cause you considerable grief and whilst it is commonsense, it is surprising how many fall foul as a result.

6. Don’t wait too long

There are strict time limitations which apply in matrimonial and de facto proceedings with respect to property settlement and spousal maintenance claims.  If you fail to commence legal proceedings within those time limitations, you are barred from making any such claim unless with leave of the Court.

No discount was made for the capital contributions made to the purchase of this property by the new wife.

The husband and his former wife had been together for 19 years and had separated in 2008. The husband had remarried in November 2010 and at around the same time had purchased a property with his new wife. The husband had contributed approximately $1.3 million and his new wife approximately $50,000. The balance of $2.2m was borrowed by the husband and his new wife jointly.

At trial the property was only valued at $3.1 million.

The husband’s position was that only 50% of the net value of the property should be included in the pool of property to be divided between the husband and his former wife.  The remaining 50% (approximately $400,000) was the property of his new wife and should not be included in the pool of property available for distribution.

The former wife’s position was that any contributions made to the property by the new wife should be disregarded and 100% of the net property value should be included in the pool available for distribution between herself and her former husband.

The Court gave consideration to the $50,000 contribution of the new wife to the purchase of the property but balanced this against the overwhelming capital contribution of the husband, the husband’s ongoing payment of the mortgage and that there was a significant drop in value of the property since its purchase which reduced the value of the pool available for division between the husband and his former wife.

In a recent case in the Federal Magistrates Court of Australia, a Mother made an application that her eldest child continue with her Catholic schooling when she commenced secondary education.

 There were three children of the parties, aged 12, 10 and 6. All three children were attending a Catholic primary school.

 The Father opposed the Mother’s application, and sought that the eldest child attended a public state school for her secondary education. It was the Father’s position that he could not afford to contribute to the cost of a private secondary education for his children and as such, all the children should attend a government school.

 The Mother agreed to fund the cost of private education but the Father still refused to consent to the eldest child attending a private school for her secondary education.

 The Father’s evidence was:

 “I want the best education possible for our daughters and so do not see any benefit of X having to travel out of her local area, to a school four suburbs away from her home, to a school where she will be separated from her local community and peer groups, when there is an excellent school in M which is close by, affordable and appropriate for X and her sisters”.

 It was the Father’s evidence that the public school at M was the best school in the area and that was where the children should attend.

 The Court made a determination with the best interests of the children as the primary consideration.

 The Court made reference to the eldest child’s meaningful relationship with both parents, although the relationship with her Father was strained given the schooling issue. The child had expressed a vey strong view that she wished to continue with her education in the Catholic Education System.

 The Father’s evidence that he was unable to contribute to the fees was discounted as the Mother had agreed to fund the fees.

 The Court found that it was in the best interests of the eldest child that she attends the Catholic school. Reasons were:-

1. The child’s strongly stated wishes;
2. The child has a genuine and real wish to remain within the Catholic School System;
3. There was psychological evidence that the transition from primary to secondary school will be easier and there is evidence that the child will embrace the new school;
4. The state school is more conveniently located to where the parties reside but the Catholic school is not a significant distance away;
5. The Father was concerned that the child would be isolated from her friends as the Catholic school is further away. The Court was satisfied that this was not the case as it was not uncommon for children to maintain friendships over greater distances;
6. Court was satisfied that both schools would meet the needs of the children; and
7. The Court was satisfied that the Mother could meet the fees.

 An Order was made that it was in the best interests of the eldest child to pursue her education in the Catholic system.

New De facto laws came into force on 1 March 2009. These new laws enable de facto relationships to be dealt with under the Family Law Act.

In the subject case, the relationship between the parties was kept a secret from the married man’s wife.

The married man did have a relationship with the female applicant and did take holidays with her, assist her in the purchase of a home and provide her with significant financial support.

The female’s application was dismissed. The Family Court found that the parties had sought to maintain separate lives and did not satisfy the requirements of a de facto relationship as defined in the Family Law Act.

The female applicant was unable to proceed with her claim for property adjustment or maintenance against the married man.

As this decision was the decision of a single Judge, it may be the subject of an appeal.

This is a relatively new area of law.

The Family Law Act provides a definition of a De Facto Relationship at section 4AA as follows:

Meaning of de facto relationship

(1)  A person is in a de facto relationship with another person if:

(a)  the persons are not legally married to each other; and

(b)  the persons are not related by family (see subsection (6)); and

(c)  having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Paragraph (c) has effect subject to subsection (5).

Working out if persons have a relationship as a couple

(2)  Those circumstances may include any or all of the following:

(a)  the duration of the relationship;

(b)  the nature and extent of their common residence;

(c)  whether a sexual relationship exists;

(d)  the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

(e)  the ownership, use and acquisition of their property;

(f)  the degree of mutual commitment to a shared life;

(g)  whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

(h)  the care and support of children;

(i)  the reputation and public aspects of the relationship.

(3)  No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.

(4)  A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

(5)  For the purposes of this Act:

(a)  a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and

(b)  a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

Section 90G of the Family Law Act requires that in order for a Financial Agreement to be binding, before signing the agreement, each party be provided with independent legal advice from a legal practitioner about:-

(a)    the effect of the agreement on the rights of that party; and

(b)    about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement.

The wife’s solicitor had signed a certificate attached to the Financial Agreement confirming that such advice had been provided.

The wife’s solicitor had not retained any records as to the advice provided to the wife, nor did the solicitor have a recollection of her appointment with the wife when the Financial Agreement was signed in 2004.

The court concluded that “The evidence as a whole including the certificate, provides insufficient evidentiary foundation for a finding that advice was given about the advantages and disadvantages of the agreement for the wife at the time the agreement was made”.

The Financial Agreement was set aside.

The Father had applied to the Family Court for an injunction preventing a 16 year old Mother-to-be from having an abortion.

The Family Court found that it lacked the jurisdiction and power to grant the order sought. The Family Court held that it does not have the power to make an order over a foetus. An order cannot be made unless the child is alive.   

The Mother-to-be gave sworn evidence that she did not intend to end her pregnancy. The Family Court indicated that regardless of the Mother’s intentions, the Family Court did not have the power to prevent her from terminating her pregnancy.

The Family Court indicated that the unborn child was not considered a “child” under the Family Law Act and accordingly, the Family Court did not have the power to make the orders sought.  The Family Court only has power to make an order once a child is born.

The Father’s application was dismissed.

There are plenty of reasons why parties to a marriage breakdown should formalise their property settlement.
An example that most people probably do not turn their minds to is the lotto win years after separation.  Imagine if you separate from your spouse, divide your modest assets by agreement and decide not to take the time or effort to formalise the agreement.  5 years later you purchase a lotto ticket and “jackpot baby” you win $5million.

A few months later, life is going great and you receive a knock at the door.  You are being served with a Family Court Application, where your Ex makes a claim for $2million of your lotto win.

You quickly make an appointment with a family lawyer and to your absolute horror you are advised that your estranged spouse has a genuine claim which is recognised at law.

Even if you only have a modest pool of property, it is worth taking advice from a Solicitor specialising in Family Law and formalising property settlement.

* The principal object of the child support assessment scheme is to ensure that children receive a proper level of financial support from their parents.
* The level of child support to be provided by parents for their children is to be determined according to their capacity to provide financial support and, in particular, that parents with a like capacity to provide financial support for their children should provide like amounts of financial support (i.e. not according to the income you choose to earn, but what you could reasonably be expected to earn).
* The level of financial support to be provided by parents for their children should be determined in accordance with the costs of the children (as opposed to the wish list some people put forward quite unrealistically).
* The level of child support payable ought vary so as children share in changes (up and down) in the standard of living of both their parents, whether or not they are living with both or either of them.

* In handling child support matters, the Child Support Agency and the Social Security Appeals Tribunal (where Child Support Appeals are heard at a particular stage), the objects of the legislation are specifically stated to be that the processes involved be handled in a way which is fair, just, economical, informal and quick.

Now if only people who work in this area and parties who are involved in child support matters could rote learn these objects (perhaps print them out and read them once a month), things might go a little more smoothly.

Recently, it was revealed that the Federal Government (thanks Mr Labor Attorney-General and staff) had forgotten to proclaim a date from which the Family Court and Federal Magistrates Court could exercise jurisdiction in de facto property settlement and maintenance cases.

In strict legal theory, this means that Orders made in relation to financial outcomes for De Facto couples between 01.03.2009 and 11.02.2012 were made without legislative authority and ought be considered arguably invalid.

A rather huge mistake don’t you think?

The Family Law Act 1975 was amended by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (the De Facto Act) to cover financial matters for de facto couples. It could not commence until proclamation which did not occur until (on 9 February 2012) the Governor-General made a proclamation fixing 11 February 2012 as the date on and after which the jurisdiction of the Family Court (FCOA) in relation to de facto financial causes could be exercised.

The date applies equally to the Federal Magistrates Court (FMCA) when it exercises de facto financial jurisdiction.

In respect of Queensland and some other States, it would appear that the period between the commencement of the relevant parts of the De Facto Act on 1 March 2009 and 11 February 2012, the Courts (the FCOA and FMCA) did not have jurisdiction.

Clearly, the remedy must be that the Federal Government ought to promptly draft and pass retrospective legislation, making all Orders during the period in question valid.

For the time being however, it is unknown how and when this issue will be resolved and as such the effectiveness of all Orders made during the period unclear.

Heads ought roll given the failure to ensure that checks and balances were not followed in the normal processing of legislation so as to it can be given effect.

Fancy the Government overlooking such an important matter and leaving litigants Courts and lawyers in limbo.