Changes very recently approved by the Australian Parliament will bring final shape to a new-generation Family Law Act, providing the basis for deciding parenting and property issues between separating couples in Australia for the balance of the 2020s and into the 2030s.
The new family law property settlement changes, likely to come into effect in early 2025, will better reflect contemporary Australian experience and values in decisions about what is a fair division of assets at the end of a relationship. For example, there will be reference to newer and more subtle expressions of family violence. There will also be explicit consideration about how family violence should affect property settlement entitlements. And there’s a new and substantial set of provisions about what to do about the family pet!
Here’s your straightforward guide to the major new family law property settlement changes and how these might affect you. If you are currently negotiating a property settlement, or involved in litigation, be aware: these changes may impact significantly on your options for action, on your experience in court and on the outcome of your property settlement.
1. Expanded Definition of Family Violence
One of the most significant changes in the new family law property settlement changes will be the broadened definition of family violence.
The new definition will explicitly recognise:
– Technology-facilitated abuse (like surveillance, harassment through social media, or tracking devices)
– Financial or economic abuse
– ‘Coercive control’ patterns of behaviour
– Systems abuse (using legal and administrative systems to harass or control)
– Reproductive coercion, and
– Abuse of pets or other animals as a form of control
This expanded and updated definition of family violence reflects developments in state and territory domestic violence laws. It will also help more victim-survivors to achieve recognition of the effect of their abuse, and the courts to better understand and respond to the more insidious, invisible forms of family violence.
2. Family Violence Impact on Property Settlements
The new family law property settlement changes acknowledge that family violence–in its newly-broadened definition–has real financial impact, both before and after the separation. The changes will require the courts to specifically consider how family violence affects the victim’s:
– ability to contribute to assets during the relationship
– ability to engage in employment or education during the relationship
– future financial needs, and
– earning capacity
For example, if your partner’s controlling behaviour has prevented you from working, studying or earning more during your relationship, the effect of this, under the new Act, can be specifically considered in your property settlement.
3. Better Privacy Protection
The approved form of the new family law property settlement changes strengthens privacy protections around sensitive personal records. Courts will have enhanced powers to block access to, and the use in court of, medical records, counselling notes, domestic violence service records and other sensitive personal and health information. The legal criteria for making a sensitive information order is quite complex but essentially, if the sharing of such information would cause more harm than benefit, the court will be able to prevent access.
This development is particularly important for survivors of abuse who might otherwise be reluctant to seek help or share important information with support services for fear it could later be accessed by their former partner.
4. New Law About Pets in Separation
Australian family law will now recognise that pets are different from other types of property in the context of relationship breakdown. This significant change reflects the emotional bonds we form with pets and their importance in family life. When deciding who will keep a pet after separation, the court will now take a comprehensive view. It will look at who has been the primary caregiver, whether there’s been any history of family violence or cruelty to the pet, how attached any children are to the animal and where those children live. The court will also consider practical matters such as each person’s ability to care for the pet in the future and current living arrangements.
5. Simpler Divorce Procedures
The process of getting divorced will become more streamlined under the new family law property settlement changes. Perhaps the most important change is that you won’t need to attend court, either in person or online, unless specifically requested, and even if you have children under 18. Your divorce can be processed ‘on the papers’ – meaning it can be handled without a hearing.
While the changes will make the divorce process more efficient, the court must still ensure that correct procedures are followed and that proper arrangements are in place for any children involved. They will however greatly reduce stress and inconvenience for divorcing couples.
6. Clearer Financial Disclosure Rules
Financial disclosure obligations will be more clearly defined under the new family law property settlement changes. Both parties must provide complete and honest financial information, from the very beginning of the financial separation process, including during mediation. Financial disclosure requires sharing by both parties of all relevant details about their assets.
The new family law property settlement changes will aim to prevent the hiding of assets and ensure that both parties can make informed decisions about their financial future. This increased clarity should help reduce disputes about financial disclosure and make property settlements more efficient.
7. More Regulation for Children’s Contact Services
New regulations should bring significant improvements and consistency to the quality of Children’s Contact Services across Australia. A mandatory accreditation system will ensure all services meet proper standards, while minimum staff qualification requirements will guarantee professional service delivery. The changes also introduce enhanced safety protocols and better information protection measures. These improvements mean families can have greater confidence in these essential services that help maintain children’s relationships with both parents in challenging circumstances.
When Do the Changes Start?
The final form of the amendments has been set and approved and now awaits only the formality of ‘Royal Asset’, which could issue at any day. Most of the new provisions will take effect six months from the date of Royal Assent, but not all. The new sensitive information order provisions, for example, will apply immediately upon Royal Assent. Some changes will apply to cases already in the court system, while others will only affect new cases started after the commencement date for the new law. It’s important to understand which changes might affect your particular situation.
I Am Not In Court. Will the Changes Affect My Property Settlement?
Yes. The changes are likely to affect almost every family law property settlement currently in train. And of course, any newly separating parties with property to divide, from this point onwards. Whether the point is explicitly made or not, all family law negotiation and mediation takes place in the ‘shadow of the law’, whatever this happens to be at the time. This is because failing to agree in negotiation or mediation almost certainly means that the parties will be court, sooner or later. The rules that would apply in court, then, should steer you in your private decision-making even now.
Why Do We Need These Changes?
We can probably all agree that current Australian family law should reflect current Australian family life. And the last significant, generational reform of the Family Law Act occurred all the way back in 2006! Since that time, aspects of our way of life, and perhaps also our values, have shifted, most particularly in recognition of the extraordinary phenomenon of family violence. There have also been a number of expert reviews recommending change.
Coupled with amendments to the parenting provisions in 2023, the new family law property settlement changes will bring about the next generational version of the Australian Family Law Act. They aim to make the system fairer and more accessible, with particular concern to better protect vulnerable parties, and to streamline processes.
What Do I Need to Do to Prepare
If you have a property settlement in train, it is important that you do what is necessary to understand how the new family law property settlement changes will impact on your entitlements. Firstly, you could read the law! Here is text of the Senate-approved Family Law Amendment Bill 2024. Unfortunately, it is the case that though the new law itself is not difficult to read, even lawyers are going to find the application some of the new provisions to individual cases a complex undertaking.
Every family law situation is unique. Informing yourself and receiving professional advice on how these complex changes will affect you and might be handled in your circumstances could be crucial to your outcomes. Speak to Tribe now to arrange a single-hour case review of your property settlement in the light of the new provisions.
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