Most couples who choose to separate make their own, private financial and property arrangements for after the end of their relationship. If no agreement between the two individuals can be reached, then dispute resolution or the family law courts are consulted to determine a property settlement.
Applicable from 10 June 2025, the Family Law Amendment Act 2024 means that property settlement considerations will be changing for separating couples. In summary, Courts must now consider family violence when determining property settlements (s 79(5)) and spousal maintenance (s 75(2)(aa)). In the amendments, family violence now includes three notable additions:
- Economic or financial abuse (s 4AB(2)(g);
- Ability of either party to provide appropriate housing for any children of the relationship (s 75(2)(c)); and
- Animal abuse of family pets (s 79(6)).
However, these amendments do NOT permit family law courts to:
- Sentence someone for engaging in family violence (which are prosecuted in state and territory criminal courts);
- Order compensation for harm caused by family violence; or
- Make family violence orders or alter existing orders.
Below is a summary of the key amendments and what this means for separating couples, whether married or de facto.
Economic or financial abuse
Section 4AB(2)(g) currently reads:
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
…
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
Under the new Amendment, subsection (g) will be changed to read:
(g) economic or financial abuse;
The new definition effectively broadens the scope of the definition of family violence to include all forms of “economic or financial abuse”. It is no longer only limited to denying the family member of financial autonomy that they would otherwise have had.
Section 4AB(2A) provides a non-exhaustive list of behaviour that may constitute economic or financial abuse under the new subsection. This includes, in addition to the situation described in the old definition which is enshrined in the new s 4AB(2A)(a)(i)-(iv):
- Withholding necessary financial support for reasonable living expenses of the family member, or the family member’s child (s 4AB(2A)(b)); and
- Any actions associated with the practice of dowry (s 4AB(2A)(c)-(d)).
These economic considerations are now paramount under property settlement considerations in s 79. This includes:
- Legal and equitable rights and interests in any property of the parties (s 79(3)(a)(i)); and
- Liabilities (s 79(3)(a)(ii))
- Twenty-three new current and future circumstances, both financial and non-financial (s 79(5)), including:
- Family violence (s 79(5)(a));
- Pension eligibility (s 79(5)(i));
- Standard of living (s 79(5)(k));
- Duration of marriage and its impact on earning capacity (s 79(5)(n)-(o));
- Financial circumstances of another person that a party is cohabiting with (s 79(5)(q);
- Any child support that a party is to provide or might be liable to provide in the future for a child of the marriage (s 79(5)(s)); and
- Equity (s79AA(1)).
When dealing with property settlements, these considerations are now prescribed and explicit for the Court to take into account.
Children
The previous ‘care and control’ over a child of the relationship that the court must consider when deciding on spousal maintenance now requires consideration of the need of either party to provide appropriate housing for such a child (s 75(2)(c)). This means that the ability of a parent to provide housing is explicitly codified, and is a factor that the Court must consider, in pursuit of the best interests of the child.
Companion animals
A new legal framework in relation to companion animals (ie. family pets) has been adopted.
s 4(1) defines companion animal as “an animal kept by the parties…primarily for the purpose of companionship.” This does not include assistance animals, farm animals or laboratory animals.
Though separating couples usually decide what to do with a family pet between themselves, the Court can now make an order as to the ownership or sale of a companion animal. The considerations the Court is to have include:
- How the animal was acquired (s 79(7)(a));
- Who has ownership or possession of the companion animal (s 79(7)(f));
- The extent to which each party cared for, and paid for the maintenance of, the companion animal (s 79(7)(c));
- Any family violence to which one party has subjected or exposed the other party (s 79(7)(d));
- Any history of actual or threatened cruelty or abuse by a party towards the companion animal (s 79(7)(e));
- Any attachment by a party, or a child of the marriage, to the companion animal (s 79(7)(f)); and
- The demonstrated ability of each party to care for and maintain the companion animal in the future, without support or involvement from the other party (s 79(7)(g)).
Disclosure
Under s 71B and its s 90RI counterpart, the duty of disclosure in relation to financial or property matters is now more stringent. Now, courts may take into account the failure to comply with the duty when deciding consequences for parties.
Application
These changes will apply to all new and existing proceedings, including where an application was filed before 10 June 2025, unless a final hearing has already commenced. However, existing financial or property orders remain unaffected. People with existing orders should continue to follow those orders.
If you are already in court or anticipate being in court, and these reforms are difficult for you to navigate, please do not hesitate to reach out to me.