In 2008, the Commonwealth Government passed laws to recognise same-sex couples. These changes included the introduction of new legal avenues when relationships break down. From 1 March 2009, same-sex couples will be able to apply to one court to settle parenting and property disputes.
What has changed?
Until recently, same-sex couples could only apply to the federal family courts (the Family Court of Australia and the Federal Magistrates Court of Australia) about parenting matters. If same-sex de facto couples had a dispute concerning property or finances they would have to run a separate case in a state court.
From 1 March 2009, many same-sex de facto couples will be able to apply to one court to settle property and parenting disputes. The federal family courts will be able to order division of property. Superannuation that each partner has will also be able to be split. Spouse maintenance (known in the United States as alimony) can also be ordered.
The new laws will apply to de facto relationships that break down after 1 March 2009. Other de facto couples will still have to use state and territory courts for financial matters. However, after obtaining legal advice, couples who separate before the new laws commence will be able to choose that the new federal laws apply to their relationship.
What relationships are covered by the new laws?
The new laws cover people in de facto relationships. This means two people who are not married or related, but who are living together as a couple on a genuine domestic basis.
The federal family courts will be able to make property orders for where:
- the de facto relationship has lasted at least 2 years in total (despite periods of separation);
- there is a child of the de facto relationship;
- one of the partners has made a substantial financial or non-financial contribution and serious injustice would result if the order was not made; or
- the de facto relationship has been registered in the ACT, Tasmania or Victoria.
Am I in a de facto relationship?
All the circumstances of a relationship will determine whether a couple have a de facto relationship. The factors a court will consider include the duration of the relationship; the nature and extent of common residence; and financial dependence or interdependence. For more information see: De facto relationships: Am I a de facto partner?
What if we don’t want these laws to apply to our relationship? Couples can make a binding financial agreement after both parties have obtained independent legal advice about how they will distribute their property and maintain each other if their relationship breaks down. Written agreements that couples have made under current state law about property division or spouse maintenance in the event of the breakdown of their de facto relationship will continue to apply under the new laws.
What about our kids?
We are yet to achieve recognition of all forms of our families, particularly in the area of adoption and surrogacy. However, the recent family law changes mean that lesbian de facto couples with children born through assisted reproductive technology (including home insemination) will be recognised as one family for all family law purposes, including property and parenting disputes. Both mothers will be recognised as parents to their children so long as they agreed to have the children together as a de facto couple at the time of conception.
Other changes are being made to recognise these new parentage laws for female same‑sex couples. In some cases, same-sex parents will also be eligible or liable for child support from 1 July 2009. For more information see: Gay and lesbian parenting.
Going to court
If you break up after 1 March 2009 (or break up before this time but choose to go under the new family law system), the federal family courts will look at the contributions that each partner has made and the future needs of each partner to divide property.
If you are applying under the NSW de facto property regime, the court will only look at the contributions made by each partner. Contributions may be financial or non-financial and can include home-making and child-rearing.
The federal family law courts deal with all parenting matters relating to where the children will live and time spent with the children. The law’s main concern is making arrangements that are in the best interests of children.
Do we have to go to court if we break up?
No, there is nothing to stop you making our decisions about parenting or the division of your property. This can be formalised as a separation agreement if you wish. Whether you go to court or not you may want to get legal advice to help you make decisions.
Where can I get more information?
Contact a family law lawyer or get free legal advice from Legal Aid NSW or the Inner City Legal Centre.
The Child Support Agency can be phoned on 131 272. They have also produced a factsheet on the same-sex reforms.
See also: De facto relationships: Am I a de facto partner?