The process for determining property settlements and spousal maintenance has changed as of 10 June 2025. This is a result of amendments made to the Family Law Act 1975 by the Family Law Amendment Act 2024.
Spousal Maintenance
The court now has greater flexibility and discretion in determining whether a party is eligible for spousal maintenance under sections 75(2) (or section 90SF(2) in the case of de facto relationships).
The court must now refer to a non-exhaustive list of matters when considering spousal maintenance, including new subsections (aa), (c) and (r).
(aa) The effect of any family violence to which one party has subjected or exposed the other party, including on any of the matters mentioned elsewhere in this subsection.
Subsection (aa) allows the court to consider the impact of family violence when determining whether to make provision for the maintenance of parties to a relationship. The intention behind subsection (aa) is not punitive or compensatory but to consider the financial and economic impact family violence has had on a party to a relationship. Examples include where one party was prevented from accessing funds or having their own bank account.
(c) The extent to which either party has the care of a child of the marriage who has not attained the age of 18 years, including the need of either party to provide appropriate housing for such a child.
Subsection (c) allows the court to consider the housing needs of a child of the relationship and acknowledges the importance of children having stable housing which is often a key issue that arises during separation.
(r) any other fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.
Subsection (r) has given the court even more flexibility and discretion in determining whether a party should receive maintenance.
Property Framework
The court’s four step approach to property settlements under common law, known as the “Standford pathway”, has now been codified under the new sections 79(3) and 90SM(3).
This change was intended to make it easier for self-represented parties to navigate the process. It is intended that self-represented parties will now more easily be able to understand the Court’s approach to making and deciding what orders altering the property interests of parties are appropriate.
The four steps the Court must take are now codified under sections 79(2) and (3) and section 90SM(2) and (3) and are explained below.
Firstly, the Court must identify the existing legal and equitable rights and interests in any property of the parties to the marriage and any existing liabilities
Secondly, the Court must take into account the considerations relating to parties’ contributions under section 79(4).
Thirdly, the Court must take into account the considerations relating to the parties’ current and future circumstances under subsection 79(5).
Section 79(5)/90SM(5) replaces the reference to subsection 75(2)/90SF(2), which often confused self-represented parties as it referred to spousal maintenance but was also considered during the property process.
Section 79(5)/90SM(5) also contains different considerations than those under sections 75(2)/90S (2) including:
(a) The effect of family violence
This means that the Court can consider how exposure to family violence has impacted on the ability of a party to make contributions to the relationship whether that be financial, non-financial, parenting or homemaking. This change is intended to codify the case law established in Kennon v Kennon [1997] FamCA 27.
(d) The effect of wastage
This inclusion was intended to limit parties’ abilities to make trivial claims of wastage and references wastage “caused intentionally or recklessly”.
Examples of wastage may include gambling, allowing a third party to have access to an asset or resource for free i.e. living at a property that could be producing rental income or damaging the reputation of a business, thereby reducing profits.
(e) Liabilities
It is intended this amendment will protect vulnerable parties who may have a liability in their name but who have not had the benefit of the liability or full awareness of a liability they have taken on (i.e. a gambling debt or tax debt).
Finally, the Court must decide whether it is just and equitable to make the Order, notwithstanding consideration taken in Steps 1 to 3.
If you or someone you know has separated and is negotiating a property settlement, our specialist family lawyers at Robinson + McGuinness can provide specialist advice about the new reforms. To arrange an appointment with one of our family lawyers, please complete the enquiry form below or call us on (02) 6225 7040 or email info@rmfamilylaw.com.au, or get started now online.