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Same Sex Laws and Cohabitation

Same sex de facto couples have been recognised under Australia’s family law framework since 2008. 

Same sex (and heterosexual) de facto couples now enjoy substantial rights and avenues of legal recourse that were once only enjoyed by married couples.

The family law allows same sex couples legal avenues to address family related matters including:-

  • property division;
  • maintenance;
  • parenting (custody) issues;
  • child support; and
  • superannuation splitting.

Who is in a same sex “de facto relationship”?

In order to access the legal benefits available to couples who are not married, the couple must be in a “de facto relationship”.  The Family Law Act states that a person is in a de facto relationship with another person if:-

  • they are not legally married to each other;
  • they are not related by family; and
  • having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis. (s 4AA)

This definition applies regardless of whether the relationship is between 2 persons of the same sex or between 2 persons of different sexes (s 4AA(5)).

In considering whether the partners have a relationship as a couple (as set out in sub-paragraph (c) above), the following circumstances should be taken into account:-

  • the duration of the relationship;
  • the nature and extent of their common residence;
  • whether a sexual relationship exists;
  • the degree of financial dependence or interdependence and any financial support between them;
  • ownership of property;
  • the degree of mutual commitment to a shared life;
  • whether the relationship was registered or not;
  • the care and support of children;
  • the reputation and public aspects of the relationship.

No single factor is determinative:  rather the relationship as a whole is taken into account.

Legal avenues available to address family matters - Binding Financial Agreements and Court Orders

Binding Financial Agreements

De facto couples are able to make their own private and legally binding Agreements (Binding Financial Agreement) with regards to:-

  • how property and financial resources are to be dealt with;
  • the maintenance of either of the parties;
  • incidental or ancillary matters;
  • superannuation;
  • child support (binding Child Support Agreement).

A binding Financial Agreement can used to address and agree upon property and related issues before a couple moves in together. 

Alternatively, an Agreement can be formalised at any time during the course of a de facto relationship, or to finalise property and related issues in the event the relationship has come to an end. 

Court avenues

Partners of a de facto (including same sex) relationship may apply to the Family Court for orders concerning asset and property division, maintenance, superannuation and parenting issues.

A couple in a de facto relationship may only make application to the court if:-

  • the couple was in the de facto relationship for at least 2 years; or
  • there is a child of the de facto relationship; or
  • one partner has made substantial contributions to the other and a failure to make an order would result in serious injustice (for example, contributions to the assets held in the name of the other partner); or
  • the relationship is or was registered.  (s 90SB)

Registration of de facto relationship

If a same sex de facto relationship is registered in the appropriate state or territory, the couple will automatically receive the right to make a court application.  This enables a de facto couple to by-pass the 2 year time period that would ordinarily apply to the relationship. 

In effect, the registration grants a de facto couple rights analogous to many of those conferred on married couples. 

Further resources:

Binding Pre Nuptial Financial Agreement

Binding Post Nuptial Financial Agreement

Binding Separation Financial Agreement

 

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