De facto and same sex marriage in Australia

The Family Law Act 1975 has always recognised the rights of married couples. The Family Law Act does not define ‘marriage’, but instead relies upon the definition in the Marriage Act 1961. Marriage was formerly  defined as ‘the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.’ The Marriage Act was amended in 2017 due to popular opinion to redefine marriage as “the union of 2 people to the exclusion of all others, voluntarily entered into for life.” The effect of this amendment is that parties to a same-sex marriage are now treated under the same marriage principles, as opposed to traditionally being treated under separate provisions dealing with de facto couples.

The method of working out what is a “just and equitable” property settlement for all married couples and de facto couples (who separated after 1 March 2009) is set out in the Family Law Act 1975.

When the Family Court is required to make a determination of the respective entitlements of the parties property interests, the Court conducts a Four Stage inquiry:

  1. What are the joint and several assets and liabilities held by the parties.
  2. What proportions can the parties be said to have “contributed” to the acquisition, conservation and improvement of the assets and how have the parties contributed to the overall welfare of the family.
  3. What are the “future needs” of the parties – that is the court considers whether any property adjustment should be made to accommodate the foreseeable future circumstances of the parties (including different earning capacity, poor health, and primary care of the children)
  4. Is an adjustment to the existing property interests held by the respective parties necessary to ensure the final division of assets, in light of the above first three stages, would be described as ‘just and equitable’.

Most matters are resolved by agreement, without the court needing to make a final decision, as a result of advice provided by lawyers as to the parties potential entitlements based upon the above Four Stage approach.

If you are a de facto couple who separated prior to 1 March 2009 the relevant State or Territory legislation may apply.

If parties are considered to be in a ‘de facto’ relationship according to the definition in the Family Law Act 1975 then generally their property settlement is dealt with by the Family Courts under the jurisdiction of the Family Law Act 1975. The law that applies to that property settlement is almost the same as for parties who are or were married.

There are some instances, for example where de facto parties have separated prior to a specific date, that their property settlement may fall under the jurisdiction of the relevant state legislation as opposed to the Family Law Act 1975.

In order to satisfy the requirements that parties are in a de facto relationship, there are a number of factors that the Court takes into consideration (see Section 4AA of the Family Law Act).

Generally, it is the case that the de facto relationship needs to be have subsisted for a period of at least 2 years before the parties’ property settlement falls under the jurisdiction of the Family Law Act. However, there are some important exceptions to this 2-year requirement.

You can be in a de facto relationship even if you are married to someone else. You can also be in more than one de facto relationship at a time.

We recommend that you contact us for specific advice in relation to whether you may be in a de facto relationship for the purposes of the property adjustment jurisdiction of the Family Law Act.

Property settlement of people in same sex de facto relationships that meet the definition of de facto relationships under the Family Law Act, are the same as property settlements of other non-same sex couples.

If you would like further information in relation to separation for people in de facto and same sex relationships please call or email us to make an appointment with one of our lawyers.

Examples of just some of the questions we can help you answer are:

  • If we break up what does the law say?
  • Does the law consider my relationship a de facto relationship?
  • If my partner and I have never lived together but we share property, what happens to the property if we separate?
  • I separated from a former partner and am now in a new relationship but did not have a property settlement with my former partner, am I at risk?
  • If I have a child with someone else but I do not consider that we are in a relationship, is my property at risk and how do I protect myself?
  • Does superannuation factor into property settlement, and if so, how?
  • My former partner and I have a child together, but we did not live together, am I (or is my partner) entitled to a property settlement?
  • My partner moved into the home that I bought in my name prior to our relationship. We have now separated. Does he/she have a legal or other interest in the property?
  • My former partner and I cannot agree on how to divide our property, what are the options available to us to reach agreement?
  • My former partner and I have reached agreement in relation to the division of our property, how do we formalise the agreement so that it is legally binding?