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The Relationships Act 2008
The Relationships Act 2008 (Vic) is due to come into effect on 1 December 2008. It represents a significant development in the law relating to domestic relationships.
The new legislation has been primarily drafted to replace the Property Law Act’s sections regarding the distribution of finances upon separation by domestic partners (defined to include unmarried heterosexual couples and same sex couples). However, the Relationships Act also contains new provisions dealing with the establishment of a relationships register for the registration of domestic relationships in Victoria, provides for Relationship Agreements, and the rights of domestic partners to maintenance.
The Relationships Act creates a relationships register in Victoria for domestic partners (irrespective of gender) to formally record the existence of their relationship with the Registry of Births Deaths and Marriages.
This registration will constitute conclusive proof of a domestic relationship.
In the event of a breakdown of a registered domestic relationship, formal steps need to be taken to effect the revocation of the registration.
The Relationships Act also provides a new method for formalising Agreements between domestic partners by them entering into “Relationship Agreements”. These Agreements are intended to evidence how the property of the relationship is to be dealt with in the event of a separation, whether maintenance should be payable and any other matter relevant to the domestic relationship.
They can be entered into at the commencement of, during the relationship or after the relationship has ended.
Relationship Agreements will be binding and enforceable under contract law. A Court cannot make an order inconsistent with a Relationship Agreement if it is prepared in accordance with the provisions of the Relationships Act. These provisions include the requirement that the Agreement must be in writing and signed by the parties. More importantly, Relationship Agreements must be witnessed by a separate independent solicitor for each party who has certified that they have given specific advice regarding the effect of the agreement on the rights of that party; and the advantages and disadvantages, at the time that the advice was provided, to the party of making the agreement.
However, a Court can overturn a Relationship Agreement if circumstances are considered to have changed sufficiently from when they were made and for various other reasons including fraud, duress, and non-disclosure of significant financial circumstances.
The Relationships Act allows for the introduction of a new regime for determining the just and equitable division of property between separating de facto and same sex couples.
A Court will have the power to make a declaration as to the title or rights, or to make an order for the adjustment of interests in relation to, the property of one or both of the parties. The application for a property adjustment must be made within two years of the date of separation.
In assessing what would be a just and equitable distribution of property between domestic partners, a Court will have regard to:
1. the financial and non-financial contributions made directly or indirectly by or on behalf of the domestic partners to the acquisition, conservation or improvement of any of the property or to the financial resources of one or both of the partners;
2. the contributions, including any contributions made in the capacity of homemaker or parent, made by either of the domestic partners to the welfare of the other domestic partner or to the welfare of the family constituted by the partners and a child of the partners or a child accepted by the partners as one of the family, whether or not the child is a child of one or both of the partners;
3. the nature and duration of the domestic relationship; and
4. any other relevant matter including:
a. the income, property and financial resources of each domestic partner and the physical and mental capacity of each partner for appropriate gainful employment;
b. the financial needs and obligations of each domestic partner;
c. the responsibilities of either domestic partner to support any other person;
d. age and state of health of each domestic party;
e. the length of the domestic relationship;
f. any other facts or circumstances the Court considers relevant.
In essence, the provisions of the Relationships Act relating to the distribution of property between domestic partners in Victoria will now move closer to the provisions of the Family Law Act 1975 (Cth).
Most importantly, in relation to determining property settlements, the new Relationships Act will not just take into account contributions to the relationship but also both partners’ future “needs” such as their income earning capacity, health and whether they are responsible for caring for any children or other people. This “needs” adjustment would not happen under the current Property Law Act. It is similar to the “needs” adjustment already applicable to married couples.
The Relationships Act also provides, unlike the Property Law Act, that either partner can apply for maintenance from the other if the applicant is unable to financially support himself or herself adequately, for any reason arising in whole or part from the circumstances of the domestic relationship.
However, the future is uncertain. Claims can be made up to two years after separation or later if the applicant can show hardship and the Court grants leave. If, for example either party suffered a debilitating accident requiring expensive medical care, and lost your source of income, the chance of a successful future maintenance clam would increase once the Relationships Act applied.
Parties in domestic relationships or considering entering into domestic relationships should be aware of the new legislation and how it will impact them in the event of a relationship breakdown. They may want to give consideration to registering their relationship and/or entering into a Relationship Agreement to give themselves more certainty about the division of their assets and resources and whether maintenance should be payable, in the event of a breakdown of the relationship.
DISCLAIMER: This information is of a general nature only and is not intended to be a substitute for legal advice. It is recommended that these matters be discussed with a Lawyer.
This is a collection of articles by staff at Oldham Naidoo Lawyers, provided free of charge to visitors to our site. All work here is copyright owned and protected (c) by Oldham Naidoo Lawyers and the respective authors.