De facto, same sex, marriage2018-02-07T14:35:46+00:00

Separated or thinking about Separation?

De facto, same sex, marriage

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.