De Facto & Same Sex Relationships in Family Law

In March 2009 the operation of the Family Law Amendment Act (2008) commenced. This was a welcome change not only for de facto couples, but also same sex couples. The changes in law included sex relationships within the definition of ‘de facto couple’.

1. What Do The Changes in Law Cover?

The new laws cover property division, maintenance, financial agreements and the superannuation of people in de facto relationships.

2. What is a De Facto Relationship?

 Generally, the parties can come to an agreement about whether there was a de facto relationship. However, if there is a dispute about whether two people were in a de facto relationship, the Court will consider the following:

  • the length of the relationship.
  • the living arrangements.
  • whether there is or was a sexual relationship.
  • the way finances were arranged.
  • whether you owned property together and how you bought it.
  • whether your relationship was registered under state or territory law.
  • whether you had or cared for children together.
  • the way you presented your relationship in public, with friends and with extended family.

De facto relationships include same sex relationships.

The laws also state that a de facto relationship can exist even if one of the partners is legally married to another person at the time.

3. Can I Make A Claim For Property Or Maintenance?

You can make an application in Court for property or maintenance claim if you satisfy one or more of the following:

  • your de facto relationship with your partner lasted for at least two years in total.
  • you have a child with your de facto partner.
  • you have made a substantial contribution to the property or finances of your partner.
  • the relationship was registered under a State or Territory law.
  • you lived for at least one-third of your relationship in NSW or another state to where the laws apply.

 4. How Will The Courts Decide On Division Of Property?

When deciding how your property will be fairly and justly divided, the Courts will have the same considerations as those of a marriage.

5. How Long Does A Relationship Have To Exist?

Subject to exceptions, the relationship must have been in existence for at least two years.

6. Are There Any Time Limitations?

Yes. You must apply to the Family Court of Australia or the Federal Circuit Court of Australia in relation to property and maintenance claims within two years of your relationship ending. However, applications in relation to children and parenting matters can be made at any time.

7. What Happens If I am Out Of Time in Property Matters?

You may obtain the consent of your ex spouse to bring an action out of time. It is always recommended that you get this consent in writing.

If you can’t obtain the consent, you can apply to Court for leave to bring an application out of time. For the Court to grant you leave, the Court must be satisfied that:

  • That hardship would be caused to a party or a child if leave were not granted; or
  • In the case of proceedings in relation to the maintenance of a party, that at the end of the period within which the proceedings should have been commenced without leave of the Court the circumstances of the Applicant were such that the Applicant would have been unable to support himself or herself without an income tested pension or allowance.

8. Do I Have To Go To Court?

Not at all. If agreeable to the parties, a Binding Financial Agreement can be entered into. Alternatively, consent orders can also be entered into and approved by the Courts.

9. Can I Apply For Maintenance?

Yes. A a separated de facto couple may make an application for the other party to pay maintenance to them for their financial support.

The court will always consider the financial position of each of the parties, and will make an order for maintenance if:

  • You cannot adequately support yourself financially for reasons of health, having the care of a child of the relationship or another reason; and
  • Your former partner is able to support you financially.

10. Same Sex Couples and Children

Generally, most children born to or adopted by same-sex couples will be recognised as children of both parents. This will include:

  • Children born through assisted/artificial conception to lesbian couples.
  • Children adopted by same-sex couples.
  • Children born under certain surrogacy arrangements recognised under a state or territory scheme.

Same-sex parents are recognised as legal parents in relation to parenting matters and child support and the Family Law Act 1975 applies to all parenting matters.

11. Do I Have To Pay Child Support?

Yes. Child support laws have applied to same-sex parents since July 1 2009. This includes cases where the children were born through assisted conception or were adopted.

If your name appears on the child’s birth certificate, if there is a court finding, or if you have signed a statutory declaration that you are a parent, then it is likely that you will be seen as a parent with a child support liability.

It will also be possible for a parent to ask the Family Courts for a declaration that a child support assessment should be issued for their child, payable by their former same-sex partner.

12. How Can Antwan Lawyers Help Me?

Antwan Lawyers understand that when a relationship breaks down, it is traumatic. This is compounded if you are trying to negotiate a property settlement with your former partner. Antwan Lawyers specialise in property settlements and disputes with de facto and same sex couples. We can assist in clearly identifying what your financial entitlements are and assisting you in obtaining it quickly. This allows you to move on with your life, and have the means to do it.