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The new laws, contained in the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008, have been proclaimed to commence on 1 March 2009.

The new laws will provide for de facto couples, when they separate, to obtain property settlements on the principles that currently apply under the Family Law Act 1975 to married couples.

This will be a change from the current laws that apply to de facto relationships which differ depending on the particular State or Territory law that applies.

The new laws will enable courts to order a division of any property that the couple own, either separately or together with each other. Superannuation that each partner has will also be able to be split (married couples have been able to split superannuation since 2002). Spouse maintenance will also be able to be ordered (not previously possible in Queensland or, until very recently, in Victoria).

Courts will be able to make these orders if satisfied of one of the following:

• the period (or the total of the periods) of the de facto relationship is at least 2 years
• there is a child of the de facto relationship
• one of the partners has made a substantial financial or non-financial contribution (including as a homemaker or parent) and serious injustice to that partner would result if the order was not made the de facto relationship has been registered in a State or Territory with laws for the registration of relationships

A de facto relationship is a relationship that two people who are not married have as a couple living together on a 'genuine domestic basis'.

It can exist between 2 people of the opposite sex, or between 2 people of the same sex.

All the circumstances of the relationship will determine whether a couple have a de facto relationship. These include:

• the duration of their relationship
• the nature and extent of their common residence
• whether a sexual relationship exists
• the degree of financial dependence or interdependence, and any arrangements for financial support, between them
• the ownership, use and acquisition of their property
• their degree of mutual commitment to a shared life
• whether the relationship has been registered, in a State or Territory with laws for the registration of relationships
• the care and support of children, and
• the reputation and public aspects of their relationship.

The new laws will apply to de facto relationships that break down after the new laws commence.

Current laws will continue to apply to other de facto relationships, although couples who separate before the new laws commence will be able to choose, after obtaining independent legal advice, that the new laws apply to their relationship.

The new laws will apply to people who are ordinarily resident in New South Wales, Victoria, Queensland, Tasmania, the Australian Capital Territory, the Northern Territory or Norfolk Island at the time that their de facto relationship breaks down.

Parties must apply to a court within 2 years of the end of the de facto relationship. In limited circumstances, a court may grant leave to make an application after the end of that period.

It is possible for a couple to make it clear that they do not want these laws to apply to their relationship. Couples can make an agreement about how they will distribute their property and maintain each other if their relationship was to break down. These are called binding financial agreements and can only be entered into after both parties have obtained independent legal advice.

Binding financial agreements can be made before entering into a relationship or during a relationship.

Written agreements that couples have made under current State or Territory law about property division or spouse maintenance in the event of the breakdown of their de facto relationship will continue to apply.