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Same Gender Laws and Living Together

Same gender couples have enjoyed recognition under the Family Law Act (Act) since 2008. With the changes is 2009, they now have similar rights and protections as married couples.

Same gender couples can address family related issues which include:-

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

Definition of “de facto relationship”?

The Act tell us that a person is in a de facto relationship with another person if they are:-

  • not legally married to each other;
  • not related by family; and
  • living together on a genuine domestic basis. (s 4AA)

This definition applies regardless of the gender of the parties – that is, whether is is male/female, male/male or female/female.(s 4AA(5)).

When considering if the relationship is genuine – these questions should be asked:-

  • how long has the relationship been going on?;
  • what is the nature and extent of their common residence?;
  • does a sexual relationship exists;
  • is there any financial dependence or interdependence or financial support between the parties?;
  • do they own property?;
  • are they committed to a shared life?;
  • is the relationship registered?;
  • are there children? and if so how are they cared for and supported?;
  • what is the reputation and public view of the relationship?.

There are many factors to consider when assessing whether a relationship is genuine domestically. No single factor decides it:  rather the relationship as a whole is taken into account.

Financial Agreements and Court Orders

Financial Agreements

De facto couples can make their own private and legally binding Agreements ( Financial Agreement) to take care of the following issues:-

  • 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).

This type of Agreement can used at any stage of the relationship – before, during or after.

Court avenues

Partners of a de facto (including same gender) relationship may apply to the Family Court for orders to sort out the same issues listed above.

If you are in a de facto relationship, you may only make application to the court if:-

  • the relationship endured for at least two years; or
  • there is a child of the 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) in which which case the couple can by-pass the 2 year time period that would ordinarily apply to the relationship.