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Relationship and Parenting Rights Q&A
Jenni Millbank is a Barrister and Professor of Law at the University of Technology, Sydney. Jenni has an extensive background in family law and same-sex relationship recognition. She can answer your questions on relationship rights, property matters and parenting issues.
Questions answered this month:
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to email your questions. Answers will be posted here monthly.
Please note that this column is information of a general nature only and does not constitute legal advice.
Previously Answered Questions:
Adoption, Surrogacy and Parenting
Civil Unions and Marriage
De Facto Relationships
Migration
Property on Relationship Breakdown
Protecting your Relationship Rights
Sex
Social Security
Superannuation
Adoption, Surrogacy and Parenting
Are agreements between donors and mothers binding?
In general, no. However some aspects may be binding, for example a voluntary agreement to provide child support by someone (either a co-mother or a donor) who is not covered by the legislation, could be treated as a contract and enforced.
Agreements about care, residence and contact with children are never binding as the court always has jurisdiction to determine what is in their best interests. Nevertheless, agreements may be taken into account, for example as evidence of the parties intentions as to the kind of family form they envisaged.
Agreements are also a good way of making sure everyone knows what everyone else intends before conception.
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What is the legal position of known and anonymous donors?
Firstly, it is important to note that whether a donor is known or anonymous, he is not a legal father under state law as long as the baby is through assisted conception. It does not matter whether assisted conception takes place through a clinic or with a syringe at home. Sperm donors do not have rights as a parent nor do they have liabilities, such as child support. Conversely, no matter what your intentions or agreement with the donor is, if you conceive through intercourse, then he will be a parent.
The position is less definitive under federal family law, but so far the Court has followed state law. It is important to note however that some judges have suggested in recent years that they could find that a known donor is a parent under the Family Law Act. This would have major consequences because of a much greater emphasis on father’s rights under the Act in recent years, including a presumption of shared equal parental responsibility (e.g. equal say in major long-term decision-making) even if they have never lived with the child, and a requirement that the court consider equal time or substantial and significant time with both parents in contested matters. At the moment, a known and involved sperm donor is considered a person concerned with the care, welfare and development of the child – not a parent – so there is no presumption in favour of contact – although it will be ordered if he can show it is in the child’s best interests.
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Would marriage give the right to adopt? Or would civil unions or de facto status do so?
Both married and heterosexual de facto couples are eligible to apply to adopt and so either married or de facto status for same-sex couples should bring the same eligibility. Civil union status would only do so if a specific inclusion of that status were made in adoption law. However note that there are very few Australian children available to adopt and relinquishing parents can express a preference for who they want. Same-sex couples, whether married, civilly unioned or de facto, would be unlikely to be eligible to adopt children from overseas because of the requirements set by the sending countries.
Same-sex couples in WA have been eligible to adopt since 2002 but so far no child has been placed with a same-sex couple.
Editor's note: In 2007, a child in Western Australia was placed with a gay male couple - five years after the reforms were passed in WA.
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Is it possible to become a parent through surrogacy in Australia? What is the law with regards to payment to the surrogate mother by the donors?
The laws about surrogacy in Australia are very complex and surrogacy, particularly if it involves payment, is illegal in many states. It is important to ensure that you get detailed legal advice if you are considering surrogacy. Editor's note: Commercial surrogacy is prohibited in NSW.
Even in the states which allow surrogacy, there are strict conditions on how surrogacy must take place such as bans on advertising. Furthermore, it may be difficult to access fertility services to conceive, and the surrogate parent (and a partner) not the commissioning parents will be the legal parents to the child.
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What is the position of the Family Court on custody and access with a parent who has left a marriage and is now gay?
The Family Court of Australia has never held that sexual orientation is a bar to residence or contact. There have not been many reported cases in recent years but it is an issue that most judges are now better informed on. Furthermore, it is now a primary factor in decision about kids that the court consider the benefit of a meaningful relationship with both parents, so there is a strong emphasis on on-going contact..
Make sure you get a good lawyer who has had previous experience with gay and lesbian clients.
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Is it possible, and legal to import semen from an international sperm bank for home insemination?
This is a really difficult question and the answer may depend upon which state you live in. It would almost certainly be unlawful for you to do this if you live in Victoria. Many Australian states prohibit “trading” in sperm unless the body is authorised by state and federal regulators to do so. The international sperm bank would not be authorised under any state law, but whether they are acting illegally depends upon whether state law extends to cover them. However the biggest problem for you may be in getting customs approval. You may in fact need a special import permit and should contact customs to find out.
There are fertility services within Australia that use donor sperm and treat lesbians, this may be an easier path.
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Civil Unions and Marriage
What federal rights available to married and de facto couples are not available to couples under a state-based civil union?
No rights available to married or heterosexual de facto couples under federal law would be conferred by state-based civil unions for same-sex couples. State-based civil unions would only affect the law of the state in question and so could provide no redress for discrimination in Federal areas of the law such as superannuation, immigration, taxation, Medicare, defence entitlements and social security.
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Some people are against marriage because historically marriage treated women as property. Are women disadvantaged in any way in modern day marriage?
Originally when women married they lost the right to themselves as a separate legal entity, in law they were frankly ‘owned’ by their husbands. Some of the vestiges of this status persisted well into the 20th century, for example married women could not work in the public service until the 1960s, lost the right to their own citizenship until the 1970s, and could not refuse consent to sex with their husband until the 1980s. There are no longer any legal disadvantages to marriage for women.
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What is the difference between relationship registration and civil unions?
Generally systems that have been called “registration” grant a limited number of rights (for example in the USA there are numerous systems at a local government and even workplace level) while civil unions grant a fuller range of rights. But this is not always the case, some of the European systems used the term registration but grant a wide range of rights.
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If I register my relationship in Tasmania or have a civil union in the ACT, will that be recognised in federal law – eg for immigration purposes will I be treated as married rather than as interdependent?
No, these laws will not give you the same status as married people in federal law, although they may do for the law of the state that grants the status.
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The federal government lacks the constitutional power to introduce civil unions (as the power it is granted in the constitution is over “marriage”, “divorce” and “matrimonial causes”). What are some options available to get around this problem?
The most obvious source of federal power that could be used is the external affairs power. The federal government would attract the power to have civil unions if it entered into a treaty with other countries to give recognition to their civil unions, or if it were found to be in breach of other treaty obligations – such as the International Covenant on Civil and Political Rights (the ICCPR). A complaint under the ICCPR was the same way that Tasmania’s criminal laws against gay sex were overturned by the Keating Labor government in 1994.
This requires an individual complaint to the United Nations Human Rights Committee (HRC). Ideally, the complainants would include a series of same-sex couples where at least one of them was an Australian citizen and the couple had a form of recognition that the federal government did not honour, such as: a couple with a UK Civil partnership (one partner must have dual UK nationality to do this), a couple with a NZ Civil Union and a couple married in Canada. These couples would need to apply for and be denied federal benefits in Australia that are granted to heterosexual couples who are married or civilly unionised. The whole HRC process is done through written submissions, so it is not expensive, but it would have to be done with expert legal advice and in conjunction with a lobby group to make sure that it is well coordinated and all the bases are covered.
If the HRC upheld the complaint, then the federal government (and any future government) would be able to use the constitutional “external affairs” power to remedy it - and this would likely give them power to introduce civil unions.
Ok, so not everyone is going to be able to bring a test case, but I think it is worth a try, so spread the word.
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De Facto Recognition
What relationship rights do I have at the moment?
If you live with your partner in a committed relationship then under NSW law you are in a de facto relationship. This means your relationship is recognised for almost all purposes in NSW law, such as guardianship, inheritance, property division and compensation laws (the exception is adoption). For some laws, such as property division and inheritance, you must generally have lived together for 2 years to qualify, but for most there is no time requirement.
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How is de facto recognition different from civil unions or marriage?
There are a number of differences – in how you get to be in one, in the rights it gives you and whether the status goes with you if you move or travel. De facto recognition automatically applies once you meet set criteria. This is good in that you don’t need to do anything formal to be recognised as a couple, but it is bad if there are aspects of your relationship where you didn’t want to be recognised– for instance if you never intend to share property. (Note however that this is the same for heterosexual couples, even if they chose not to marry, they will be ascribed de facto status). All couples can opt-out of some obligations, for instance by signing a “domestic relationship agreement” – basically as a “pre-nup” - to order property in the event of a break-up. Likewise couples can opt-out of ascribed inheritance rules by writing a will.
De facto recognition gives you most of the same rights as unmarried heterosexual couples and married couples under state law. In federal law heterosexual de facto couples have extensive recognition but this has not yet been extended to same-sex couples.
Whether or not you still have rights as a de facto if you go somewhere else will depend on the laws there. At the moment every state and territory in Australia except South Australia has very similar de facto laws to NSW - so you would be recognised everywhere except South Australia. There is de facto recognition in Canada and New Zealand, but not, for instance, in the United States.
Marriage requires a couple to register their intention to marry a month in advance and then go through a formal process. For heterosexual couples marriage in fact gives very few additional rights in Australia compared to de facto recognition (the main one is access to the Family Court to divide property on relationship breakdown instead of the more expensive and less flexible state courts– but this last distinction is also soon to change). Marriage is a more easily portable status than de facto, it is recognised in all state and federal law and in the laws of other countries also.
Same-sex couples cannot marry in Australia. As a result of the 2004 marriage ban, if same-sex couples do marry elsewhere (for example in Canada), their marriage will not be recognised in Australia.
Civil Unions require couples to go through a formal registration process similar to marriage. They exist in many European countries and have recently been introduced in the UK and New Zealand. Civil unions have been described as “marriage by any other name” when they grant equal rights and as “marriage-lite” when they do not. Civil unions may not be as portable as marriage, because they are a new status so other countries have to pass laws to specifically recognise them (although note that the UK and New Zealand have already done so).
There are no civil union laws in Australia to date. It is possible that the federal government lacks the constitutional power to introduce civil unions (as the power it is granted in the constitution is over “marriage”, “divorce” and “matrimonial causes”). This remains to be tested.
The states and territories could grant civil unions (and Tasmania already has a registered partnership scheme which is similar) but these would not grant any greater rights than those already held by de factos and could not translate into federal law.
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I read that the De Facto Relationships Act applies 11 tests to determine the legal validity of a de facto relationship, and that typically gay men can only satisfy 4 of these 11 criteria. Is this so?
Section 4 of the Act, since 1999 renamed the Property (Relationships) Act, defines a de facto relationship a relationship between two adult persons:
(a) who live together as a couple, and
(b) who are not married to one another or related by family.
It is quite rare for there to be contention over whether a de facto relationship exists, so there is usually no need for a court to inquire into it. For example if a same-sex couple break up and need the court to divide their property, if both partners agree that they had a de facto relationship, then it won’t be an issue.
However, if there is disagreement over the relationship existing, for example if one partner dies and their family contests the inheritance, the Court can look at a range of factors. These factors are the same for straight and gay relationships.
It is important to note that these factors are only a guideline of issues to be considered. The Act instructs the Court to take “all the circumstances of the relationship into account”, to look at only those factors that are relevant to each particular case, and that no one factor or any combination of factors is necessary to establish a de facto relationship. This last point was included in 1999 in response to gay and lesbian community lawyers concerns that same-sex relationships may not have exactly the same features as heterosexual ones. We did not want our community disadvantaged for not conforming to pre-existing conceptions of what relationships of commitment require.
The list of factors is:
(a) the duration of the relationship,
(b) the nature and extent of common residence,
(c) whether or not a sexual relationship exists,
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,
(e) the ownership, use and acquisition of property,
(f) the degree of mutual commitment to a shared life,
(g) the care and support of children,
(h) the performance of household duties,
(i) the reputation and public aspects of the relationship.
In cases that have been decided in the past five years it is clear that even same-sex relationships that don’t conform to standard heterosexual ideals will be recognised. For example:
- A number of cases have found that gay men in cohabiting couple relationships that were non-monogamous (including regular threesomes in one case) were still de factos because their primary emotional commitment was to each other.
- Gay guys who met originally through paid sex, but who later moved in together were held to be de factos.
- Closeted couples have been held to be de factos.
- Lesbians who kept separate bank accounts through the entire relationship were held to be de factos.
- In a recent heterosexual case, the fact that a couple had to live apart for an extended period of time while one partner cared for her ailing parents, did not stop the relationship from being a de facto relationship.
- In another recent heterosexual case the couple had been together for 6 years but had never had a common residence – instead they took turns in staying at each other’s house for most nights of the week. This was held to be a de facto relationship.
So it is not the number of factors that you satisfy that matters, it is whether on the whole your relationship seems committed and enduring. So far the court has interpreted the category broadly and there does not seem to be any cause for concern about a diverse range of same-sex relationships satisfying the criteria.
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How do I prove I am in a de facto relationship?
One of the practical advantages of civil unions and registration systems is that the registration proves that the relationship exists, whereas with a de facto relationship you may have to prove it.
The first thing to note is that you only have to prove your relationship exists if there is someone who denies it. If you are still together this is easily solved by a statutory declaration or affidavit from both of you saying when you got together, that you live together and that you are in a committed relationship. You don’t need a court order to prove that your relationship exists.
Most frequently proving a de facto relationship is an issue when partners break up and one person, rather than denying it outright, claims that the relationship was much briefer than it was or that it had ended earlier even though the parties still continued to live together. Another common, though decreasing, scenario is where a couple are closeted, one partner dies without a will and their family denies the relationship existed and claims the inheritance for themselves.
There are a lot of simple things you can do to ensure that if you are placed in a situation of having to prove your relationship, you can do so. A relationship can be demonstrated through all kinds of evidence of cohabitation and commitment – jointly purchased property or names on leases, joint bank accounts, shared purchases of furniture or household items, or listing each other as next of kin on documents such as passports, superannuation funds and emergency contact forms. Even photos and joint invitations to social events or shared holidays are good evidence. You can also execute mutual wills in which you name each other as partners. You don’t need to prove that your relationship is perfect, or even that it is monogamous: the essence is that you live together and are committed to each other.
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Would federal recognition of same-sex couples as de facto relationships take away any of our current rights at state level?
States have exclusive power over a range of areas important to relationships, such as inheritance, burial, guardianship and compensation law. The Commonwealth has power over areas such as tax, immigration and social security.
Federal recognition as de factos would only grant rights at federal level, and would not impact on any of the rights under state law.
This is because federal law can only override state law when the Commonwealth has power over that area under the Constitution. So, even if there were Constitutional power for civil unions (which I doubt), they would also be limited in the sense that they would only be operative in federal law, unless all of the states also changed all of their laws to recognise the status granted.
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Would de facto recognition at federal level allow a government that did not like same-sex relationships to ban same-sex relationship recognition, like the marriage ban?
A later government could only repeal what had already been done – so they could take away federal rights that an earlier government had granted. But they could not revoke rights that existed at state level.
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Migration
Both I and my same-sex partner want to migrate from our home country to Australia. Can we do this together as a couple under the skilled migration program?
Australia does allow a same-sex partner to apply to accompany the primary applicant under only one category of skilled migrant visa. From 1 July 2006, the Temporary Business (Long Stay) Visa (subclass 457) permits the "independent partner" of a person to accompany the primary visa holder. But this visa is only for a maximum of 4 years and requires the primary holder to be sponsored by an employer – i.e. already have a job here. For any other category of skilled migrant visa you would both need to apply separately.
Although the Minister for Immigration has said that she will broaden the categories of visa open to interdependent partners it is not clear when this will happen.
The only other category of visa that allows for “interdependent partners” is family sponsorship; this means that one partner has to be an Australian citizen or permanent resident.
Editor's Note: In 2008 the Australian Government passed reforms to immigration rules to ensure same-sex de facto partners will be treated equally. For more information on the incoming laws, see Immigration and Citizenship.
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Can the same-sex partner of an Australian citizen or permanent resident migrate to Australia?
A same-sex partner of an Australian citizen or permanent resident can currently migrate to Australia under an "interdependency" visa, which is basically the same as for married and de facto heterosexual couples, you need to have proof of your relationship and have lived together for a year.
Editor's Note: In 2008 the Australian Government passed reforms to immigration rules to ensure same-sex de facto partners will be treated equally. For more information on the incoming laws, see Immigration and Citizenship.
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Are same-sex couples in a UK civil partnership (one British citizen and one Australian citizen) entitled to citizenship in Australia and the UK in the same way that married couples would be?
While UK immigration and citizenship law is the same for civil partners and for married partners, civil partnerships from the UK, NZ and elsewhere are not recognised in Australian law. However, under Australian law an "interdependent relationship" is recognised as the basis for the partner of an Australian citizen or permanent resident bringing a partner to Australia on a temporary visa and then later applying for citizenship. An interdependent relationship is basically the same definition as a de facto relationship, and the provisions are slightly less generous than the provisions for married couples. A civil partnership would be given a great deal of weight in this process even though it is not officially recognised as a status.
Editor's Note: In 2008 the Australian Government passed same-sex reforms to ensure same-sex de facto partners will be treated equally. However, international civil unions and marriages will still not be automatically recognised in Australia. They can neverthless be used as proof of a relationship. For more information on the incoming laws, see Immigration and Citizenship.
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Property on Relationship Breakdown
Is it now possible that on break up of a relationship, the person who entered the relationship without any assets or who contributed very little if anything to the joint assets accumulated during the relationship, could seek half of what are now seen as joint assets due to a brief de facto relationship status?
Same sex partners who have lived together for 2 or more years and made a contribution to shared property have been able to make a claim for a share of that property under state law since 1999. The major advantage of being included under federal family law is that the process is cheaper, faster and fairer, with far better dispute resolution processes to help couples come to their own resolution than the state courts.
The Family Court does not simply give “half” of any property to any partner who applies. The court assesses each partner’s contribution and if one partner has made sacrifices for the relationship – such as time out of the workforce to care for children or for their partner if they are unwell – they can also take that into account when assessing future needs.
Typically in a case involving a heterosexual couple who have been together 15 or 20 years and had children where the woman has taken several years out of the workforce and ends up with a far lower earning capacity than the man a needs adjustment in her favour might end up being 5-10% of the value of the property.
So no, it is not at all conceivable that a partner who contributes nothing will obtain half of the assets.
As under the old state law, a pre-nup is available to the parties if they wish to set out a division of assets in advance. This is also cheaper and simpler to do now under federal law.
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Protecting your Relationship Rights
What rights do straight couples have that I don’t have?
In NSW the only difference is that opposite-sex married and de facto couples can apply to adopt children as couples, while lesbian and gay applicants are only able to apply as individuals. In practice, individual applicants may have a lower priority.
Heterosexual couples also have comprehensive recognition in federal law – such as immigration, superannuation, taxation and family law. There is very limited recognition of same-sex couples in these areas of federal law.
Editor's Note: In 2008 the Australian Government passed comprehensive reforms recognising same-sex couples in federal law. These laws commence at various dates, with the last commencing by 1 July 2009. See Overview of the Same-Sex Reforms.
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What can I do to get legal rights and protection for my relationship now?
All state laws already grant us automatic recognition as de facto couples in areas such as inheritance, guardianship, property division and accident compensation, if we live in a committed relationship. For most of these laws there is no required length of cohabitation, but a 2 year prerequisite generally applies to areas such inheritance and property division (although not for property division in the ACT or Tasmania). A number of laws that don’t give us automatic recognition can still be used if you can put the time and money into making them work for you.
Some things are really simple:
- Keep records. If you are in a de facto relationship but don’t own property together or have joint bank accounts, make sure that you keep a copy of the lease if both your names on it, or receipts for items like furniture that you bought together, or tickets from shared holidays. If you live in the ACT you can enter into a Civil Partnership (which gives few additional rights, but can be used as proof of a relationship).
- Write a will. If your financial affairs are simple and you only want to leave property to a few people, use a standard form from a newsagents or the precedent for a simple will in the Law Handbook. If you have a lot of property or it is complicated, get a will drawn up by a lawyer.
- Name your partner as an executor or choose an executor who you trust will respect your wishes and your relationship. Name your partner as your de facto partner and you next of kin (this could then be used by them as proof in other situations, for example if you were injured and someone had to make medical decisions). Encourage your partner to do the same in their will.
- If you have a child, make sure that they are named in both mothers' wills. If you are the birth mother you can make name your partner (or anyone else) as the “testamentary guardian” of the child. If there is no other legal parent, this gives that person the right to live with and care for the child in the event of your death, in the absence of any court orders to the contrary. So grandparents or other relatives can’t just swoop in and take over if the birth mother dies.
- Nominate a beneficiary in your super fund. If you die, death benefits may be worth tens or hundreds of thousands of dollars. In some super funds your nomination will be binding, while in others it won’t (although trustees are usually reluctant to go against a nomination). Some super funds allow you to do this online, so you don’t necessarily have to out yourself to your employer. This can also be valuable proof of the existence of your relationship for other purposes. Encourage your partner to do the same.
Other steps are less simple, but are still better than the costly and complicated alternatives if you don't take action on your own behalf. Many of these are particularly important if you have children born into a lesbian relationship:
- Consider entering a domestic relationship agreement. This is basically a "pre nup" setting out how you want to divide your property and finances if you separate. You can enter into such an agreement at any time during a relationship, or at the point of separation. If done properly it is binding on you both (in most states you both must receive independent legal advice and the agreement must in writing and witnessed). It should cost around $3000, a lot less than the cost of trying to divide property in a later dispute.
If you have children a huge advantage is that you can organise child support this way. Lesbian families are not covered by the federal administrative Child Support Scheme, but are still able to sue each other for support through a breach of promise action in the very expensive and unpredictable common law in state courts (meaning $20,000-$40,000 in legal costs). This kind of agreement, whether made during or at the end of a relationship, means that you can sort out a fair and affordable division of your child's financial needs between yourselves.
- Seek Parenting Orders by Consent from the Family Court. Most lesbian mothers still don't know that they can use the Family Court for any child related application, even if not a legal parent. Both mothers can approach the Family Court jointly to ask for parenting orders by consent. These can cover where the child lives and who has parental responsibility over the child. It is a relatively simple process that can grant extensive rights to the co-mother to have residence of and make decisions about the child. It provides an important "status quo" if the birth mother were to die - so for example other family members could not come and take the child. It also provides a status quo if a couple separates - so for example the birth mother could not, without court orders, just take the child to live in another country.
- Go to Sydney (or Perth, or Darwin, or Canberra) to give birth! NSW, ACT, WA and NT all now grant lesbian co-mothers automatic parental status when the birth mother conceives through assisted conception, regardless of where conception takes place. They provide that if the baby is born in those jurisdictions both mothers can register themselves as parents on the birth register and be named as parents on the birth certificate. Whether that birth certificate has full legal effect in other states that don't yet recognise co-mothers remains to be seen, but it is a first step.
If you live in NSW, ACT, NT or WA and already have kids with a female partner using assisted conception, you can apply to the Births Registry to have the birth certificate amended to include both mothers' names.
If your partner was not in a relationship with you prior to conception, but joined your family later, you may be able to apply for a second parent adoption in WA, Tasmania or the ACT.
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What is a “domestic relationship agreement”?
A domestic relationship agreement is basically a “pre-nup”, a binding financial agreement that you can enter into with your partner. You can enter into an agreement before or at any time during cohabitation. (After separation there is also the option of a “separation agreement” dividing property in a final way).
You need a lawyer to draw one up and both parties have to get separate advice from their own independent lawyer about whether or not the agreement is fair and in your interests.
This may sound like a vile and unnecessary thing to do when your relationship is going fine, but domestic agreements have some very important advantages. Firstly, although they mostly cover financial matters, you can also include a wide range of other things that courts don’t deal with that may be really significant to you – such as who gets to keep the pets, or which one of you will stay in your house if you split.
An agreement provides both certainty and flexibility: only in rare circumstances will courts overturn a properly executed agreement, but you can both vary it at any time by consent if things change and you want to make new provisions.
For lesbian couples with children these agreements are a simple and practical way to provide for child support in the event of a break-up – an issue that is otherwise incredibly complicated to resolve under existing law.
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How can I enter into a domestic relationship agreement and how much will it cost?
The first thing you would need to do is sit down with your partner to talk through your contributions and expectations. Then you can visit a lawyer who will draw up an agreement. If you are happy with it then your partner needs to also visit a different lawyer to get independent advice on their position under the agreement.
You should expect that the whole process will cost a couple of thousand dollars. The clearer you both are about what you want, the faster and cheaper it will be. If you change your minds about what you want included, or can’t agree to terms and need to go back and forth with different versions, then the expense racks up.
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Sex
What is the age of consent in NSW?
Since 2003, the NSW age of consent is 16 for everyone, regardless of the gender of either partner.
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Social Security
What are the implications on sole parent pensions and child support if I move in with my same-sex partner and kids? Is this a de facto relationship?
Many social security payments are reduced or disallowed if a claimant has a live-in “partner”. However the current definition of partner in social security law only covers heterosexual relationships, so same-sex couples are completely entitled to claim any benefit at the single rate.
The income of a partner has no impact on child support payments.
Editor's note: In 2008 the Australian Government passed comprehensive reforms concerning same-sex couples, including in the area of social security. From 1 July 2009, same-sex de facto couples will be treated in the same way as heterosexual de facto couples in relation to Centrelink payments. For more information see: Social Security.
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Superannuation
How do I prove my relationship for superannuation?
The main reason you would need to prove your relationship for superannuation would be if one of you died. Death benefits are usually sizable, and if they are passed directly to an eligible dependant they will incur a lot less tax than if they go to beneficiaries after passing through the deceased’s estate.
The problem with super is that proving you are in a de facto relationship is not enough. While heterosexual de factos and married couples are presumed by the legislation to be dependants, same-sex couples have to prove that they are in an “interdependent relationship”. This means demonstrating that one or both parties provided the other with “financial support” and “domestic support and personal care”. In earlier cases on other laws with the same wording, courts have interpreted “personal care” very narrowly as requiring bodily assistance such as with mobility, such that it would only really cover a relationship in which one partner was disabled, incapacitated or regularly ill. However it looks as though the “person care” provision will broaden - in some recent tax rulings on the super provisions, helping to lift heavy shopping was sufficient to qualify as “personal care”.
To protect your relationships, list your partner as your beneficiary in your super fund, keep evidence of interdependence, and also write a will in which you specifically leave any super benefits to your partner. That way your partner should be able to receive the benefits, either directly from the fund, or at worst through your will at a higher tax rate.
Editor's note: In 2008 the Australian Government passed comprehensive reforms concerning same-sex couples including in the area of superannuation and tax. For more information see: Superannuation and Taxation.
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