Unmarried Spouses Can't Escape Family Law Act

There's a basic principle of statutory interpretation that says that new legislation can only be interpreted as operating from the moment it comes into effect onward, and that new legislation can't go back in time unless the new legislation expressly says so. In other words, if a law comes into force on April 1st which says that men must wear orange jackets on Thursdays, the requirement is in effect from the first Thursday after April 1st, and doesn't apply to any of the Thursdays that came before April 1st.

This principle is really important for the new Family Law Act because the new legislation changes so much so significantly. In this post, I'm going to talk about whether people who are in unmarried relationships now are going to be caught by the definition of "spouse" under the new legislation.

Who is a spouse?

One of biggest changes under the Family Law Act has to do with who's a "spouse" and who's not. The definition changes under the new act. For the purposes of spousal support, "spouse" includes:

1. married spouses,
2. people who have lived in a marriage-like relationship for at least two years, and
3. people who have lived in a marriage-like relationship for less than two years but have a child together.

 For the purposes of dividing property and debt, "spouse" has a narrower definition and includes only:

1. married spouses, and
2. people who have lived in a marriage-like relationship for at least two years.

This last part is really important. Right now, unmarried spouses don't have any automatic property rights under the Family Relations Act. When the new law comes into force, unmarried spouses will have property rights equal to the rights of married spouses.

Time limits to the claims spouses can bring

The other thing that's important are the time limits about when a claim can be made, because under s. 3(2) of the new act, "spouse" also includes former spouses. Under s. 198, claims for spousal support and the division of property and debt must be brought within two years of divorce or nullity, for married spouses, or within two years of separation, for unmarried spouses.

Spouses and the claims spouses can make

To summarize everything, under the Family Law Act a "spouse" who is entitled to make a claim for spousal support and the division of property and debt includes separated unmarried spouses, but the application must be made within two years of when they separated. Under the Family Relations Act however, unmarried spouses stopped being spouses within one year of when they separated, after which a claim for spousal support could not be made, and unmarried couples were never able to make a claim for the division of property.

The problem

So here's what it all boils down to.

• Right now unmarried couples who have lived together for at least two years are not "spouses" for the division of property under the Family Relations Act.
• Unmarried couples who have lived together for at least two years will qualify as "spouses" under the Family Law Act. Spouses who have separated will also qualify as "spouses."
• Under the Family Law Act, separated spouses can apply for spousal support and the division of property and debt as long as they apply within two years of the date they separated.

Last year, the Attorney General issued a statement that the new act would come fully into force twelve to eighteen months after it became law on 24 November 2011. That's less than two years.

Mea culpa

From time to time, lawyers call me for a second opinion. I think I've been giving the wrong advice for the past two or three months. I had been telling people that the definition of "spouse" under the Family Law Act could only operate prospectively, that is, into the future. Therefore, when the new law comes into effect, the new definition would start then. Unmarried couples who aren't "spouses" for the division of property now wouldn't be "spouses" for the division of property and debt unless they are still together when the new law comes into effect.

This made sense to me, especially because it seemed somewhat unfair to drop unmarried couples into the deep fryer without giving them fair warning. I thought about how the definition of spouse limits spousal status under the Family Relations Act to one year after separation, and it seemed that this gave people plenty of time, figuring that spousal status once lost couldn't be regained. I assumed that at least one of the reasons for the twelve- to eighteen-month delay was to give everyone lots of time to think about their relationships. I thought that the knowledge that a relationship will have significant economic consequences in the future might make some people reexamine things and consider whether the new effect of the Family Law Act was more than they had bargained for when they started their relationship.

Then a colleague named Ron Huinink called me, I looked into things more closely and discovered that this wasn't the case at all. Yikes.

Summary

When the Family Law Act comes into force, for the purposes of the parts of the law that divide property and debt "spouse" will at that moment be defined as including:

1. anyone who is or has ever been in a married relationship, and
2. anyone who is living with another person in a marriage-like relationship and has done so for at least two years, and anyone who has ever lived with someone in a marriage-like relationship for at least two years.

The limit to these spouses' ability to make claims for the division of property and debt is that the claim must be made within two years of the date of separation, for unmarried spouses, or the date of divorce, for married spouses.

There is no twelve- to eighteen-month period to think about things. The principle that legislation is not to be interpreted as having a retroactive effect has nothing to do with it; the definition of spouse that will be in force when the new law comes into force is expressly worded so as to catch former spouses as well as people in existing spousal relationships.

To summarize, as long as the act comes into force on or before 24 November 2013, if you were in a spousal relationship when the Family Law Act became law, you will be subject to the property and debt provisions of the new law. Breaking up now will not save you from the effects of the new law. It's too late and was too late from the moment the bill was tabled. To take advantage of the new legislation, all a spouse needs to do is wait until the Family Law Act comes into force and then file an action in the Supreme Court.