Amendments to the Family Law Act commencing 10 June 2025

On 10 June 2025, amendments to the Family Law Act 1975 (“the Act”)  which impact how the court will determine a property settlement and/or spouse maintenance came into force. According to the Attorney General, the Family Law Amendment Bill seeks to “make the division of property and finances safer, simpler and fairer for separating families, especially where family violence is present.”

The amendments will cause the Court to consider an array of matters which it has not previously had to consider when determining property and maintenance applications. These new matters are discussed below.

Financial abuse and domestic violence in property matters

The amendments to the Act now require a twofold consideration of the impact of family violence on a party to the marriage. Where family violence is alleged in property proceedings, the court must consider the impact of family violence on the respective contributions of the parties to the marriage and its impact on the current and future circumstances of a party to the marriage.

The well-known case of Kennon v Kennon [1997] FamCA 27 has been legislated in the new subsection 74(4)(ca) which requires the Court to take into consideration “the effect of any family violence, to which one party to the marriage has subjected or exposed the other party, on the ability of a party to the marriage to make the kind of contributions referred to in paragraphs (a), (b) and (c);” 

For the first time, the Act explicitly recognises family violence as a relevant consideration when determining a property settlement. The court is now required to consider the economic impact of family violence on the respective contributions of the parties to a marriage when determining a just and equitable property settlement.  

The definition of family violence in section 4AB of the Act has been amplified to include amongst other things, economic or financial abuse and coercive and controlling conduct. Section 4AB(2A) of the Act outlines that financial abuse may include:

1. Restricted access to finances (for example, controlling bank accounts or income).

2. Accumulated debt in the other party’s name without consent.

3. Concealed assets to disadvantage a spouse in settlement negotiations.

A party asserting such conduct must demonstrate a connection between the family violence conduct and its effect on their ability to make a contribution to under paragraphs 79(4)(a), (b) or (c) of the Act. Evidence as to the history of the alleged family violence will be relevant to the assessment of contributions by the court.

Section 79(5) of the Act has been amended to require the court to consider the impact of the family violence on the current and future circumstances of a party. This amendment will give the court a broad discretion, where relevant, to consider the economic impact of the family violence on the current and future circumstances of a party. For example, the current and future cost of medical treatment and/or counselling necessitated by family violence.

The inclusion of pets in property proceedings

For the first time in Australian family law, pets are no longer treated as mere property. A pet is now referred to as a “companion animal”. The definition of ‘companion animal’ at subsection 4(1) of the Act distinguishes companion animals from assistant animals and farm animals.

The amendments to the Act provide the court with the power to make orders in relation to the ownership and retention of a companion animal. The amendments to sections 79(6) and (7) of the Act requires the court to consider the following factors:

1. Who has provided primary care (feeding, walking, veterinary expenses).

2. The emotional bond between the pet and each party.

3. Instances of coercion, where pets have been used to control or manipulate a spouse.

Wastage of assets

A new “wastage factor” has been included in the property division provisions of the Act. The new section 79(5)(d) of the Act requires the court to consider “the effect of any material wastage, caused intentionally or recklessly by a party to the marriage, of property or financial resources of either of the parties to the marriage or both of them”. Where relevant the court must take into account the effect of the wastage of assets or financial resources when assessing the current and future circumstances of a party. The wastage must be material, and it must be intentionally or recklessly caused by a party to a marriage. An example of wastage may be significant gambling losses. Whether such losses are material will depend on the size of the asset pool. Whether the losses were intentionally or recklessly causes will depend on the facts and circumstances of the case.

Current and future needs of a party to a marriage or de facto relationship

The recent amendments also include new factors that a court must take into account when considering and determining a property settlement application or a spouse maintenance application. Two of the more significant new matters are as follows:

1. The impact of family violence on a spouse victim; and

2. The need for either party to provide appropriate housing for a child under the age 18 for whom they provide care.

Family Violence

Section 75(2)(aa) is a new statutory consideration which requires the court to take into consideration “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…”  This consideration of family violence relates to its impact on a party’s current and future needs and is distinct from the impact of the violence on a party’s contributions to the relationship or its impact on a party’s current and future circumstances as discussed above.

For example, the court can consider the impact of family violence on the spouse victim’s present and future earning capacity when determining a property settlement application or an application for spouse maintenance.  

Section 75(2)(c) has been amended to include the words “… the need of either party to provide appropriate housing for such a child” referring to a child under the age of 18.

The inclusion of this additional consideration will likely give rise to the court exercising its discretion in a more generous manner in favour of the primary carer of children under the age of 18 in circumstances where they do not retain the former matrimonial home as part of the settlement. 

Duty of Disclosure

While strict and mandatory rules around the provision of financial disclosure currently apply under Part 6 of the Federal Circuit and Family Court (Family Law) Rules 2021 (“the Rules”)  these rules have now been codified in the Act in the new section 71B.

The inclusion of this new section aims to strengthen the existing financial disclosure obligations under the Rules which require both parties to provide complete, transparent and ongoing disclosure of documents and information relevant to their financial circumstances and the issues in dispute. The new amendment to the Act now provides the court with greater discretion to impose punitive penalties on a party who has failed to comply with the statutory obligation to provide full and frank disclosure of their relevant financial circumstances. 

Under the new amendments, the Court now has discretion to limit the use of sensitive information if the disclosure of such information could cause harm. Protected records may include mental health reports and medical histories, domestic violence risk assessments and evidence of online harassment or coercion.

Summary

The amendments to Act and the conduct of family law property matters in Australia generally, signify a pivotal shift in addressing contemporary family disputes. The economic impacts of family violence are now explicitly considered when dividing property and finances between separated couples. Similarly the negative effect of a party’s reckless or intentional conduct in the management or use of assets of financial resources can now be relevant to the determination of a property settlement dispute. 

By acknowledging pets as companion animals with unique considerations, the law moves away from treating them as mere property, instead reflecting their emotional and relational importance to a party. 

Furthermore, the enhanced financial disclosure regulations and measures to protect sensitive information underscore the law’s commitment to ensuring transparency, equity, and personal safety in family law proceedings. These changes collectively represent a more humane and just approach to resolving complex disputes, offering improved protection for individuals and their valued assets.

Since 1975 the Australian family law has been a “no fault” jurisdiction in which negative behaviour has not impacted the outcome of a property settlement. It is arguable that the recent amendments to the property and maintenance provisions of the Act are a nuanced shift away from the “no fault” system and an attempt by the legislature to call out and redress the adverse impact of the negative behaviour in family law property matters. Such a shift is consistent with current societal expectations for fairness and accountability in family law outcomes.

Authors: Fiona Hoad and Madeline Elliott

This publication is intended as a source of information only. No reader should act on any matter without first obtaining professional advice.