Many people choose simply to live together rather than marry and the law relating to de facto and same sex couples is, save for a few limited circumstances, the same as for married couples.
HOW DO YOU KNOW IF YOU ARE ALREADY A DE FACTO COUPLE?
Section 4AA of the Family Law Act gives some pointers as to what would be looked at to answer this:
- The length of your relationship;
- Whether you share a home;
- Whether you have a sexual relationship;
- Your financial arrangements;
- What property you own/use together;
- How committed you seem;
- Whether the de facto relationship is officially registered;
- Care and support arrangements for any children;
- How others view your relationship.
Your relationship may be considered de facto even if:
- You are in more than one de facto relationship at the same time; or
- You are already legally married to someone else.
There is no one “clear cut” answer as to what defines a de facto relationship. The Court look at the whole circumstances to decide this issue. If the Court determines a de facto relationship exists, then the Family Law Act applies. On the other hand, if the relationship is characterised as something else, then very complex laws of trust and equity regulate the affairs of the persons concerned.
WHAT SORT OF COURT ORDERS CAN DE FACTO PARTIES SEEK?
Defacto partners can, like married couples, file Applications for the following:-
- Property proceedings;
- Spousal maintenance proceedings, once separated;
- Parenting Orders;
- Child support and adult child maintenance (as well as seeking child support via the Child Support Agency where appropriate).
2 Year Rule
Unlike married couples who can commence proceedings for a property or financial orders at any time without the leave of the Court (unless 12 months from the date of Divorce has expired), the Family Law Act requires a defacto couple to have been in a relationship for at least 2 years if they wish to apply to the Court for a property adjustment.
However, this rule can be waived and leave granted by the Court to continue with proceedings if:-
- There is a child of the de facto relationship; or
- The Court thinks it would be seriously unjust to deny access to the Court; or
- If the de facto relationship is registered.
Section 90SD of the Family Law Act flags some preliminary jurisdictional requirements around where parties live for at least part of the relationship and where they live when the relationship breaks down.
This would be relevant for example, for Australians living overseas during or at the end of their de facto relationship, who were seeking Court Orders in Australia.
Section 44(5) of the Family Law Act states that de facto parties must make their application to the Court for property or maintenance within 2 years of the relationship breaking down.
However, in certain limited circumstances, this period can be extended with the Court’s permission:
- On grounds of hardship to the late party or a child; or
- If the Applicant was relying on Government assistance when the 2-year period ended.
CHILDREN OF DEFACTO COUPLES
The children of defacto couples and the law relating to their living arrangements are identical with children from married couples.
REGISTERING YOUR RELATIONSHIP
Some de facto partners choose to register their relationship with the Registrar of Births, Deaths and Marriages. Not only does this serve to demonstrate their commitment to the relationship but it helps prove that they are in a domestic relationship.
This may be useful if, for example:-
- The parties separate and want to take Court proceedings against each other for property or children’s Orders or maintenance;
- If either of them dies during the relationship and the survivor wants to claim superannuation death benefits or inheritance rights or to be fully involved in medical decisions during an illness.
The Family Law Team at Pearce Webster Dugdales has extensive experience in this area of the law and will be happy to help you work through all relevant issues.
SAME SEX COUPLES
Who is covered?
The Family Law Act provides jurisdiction not only to married couples but all couples from the LGBTIQ community.
In defining a defacto relationship, the Family Law Act, which is Australia wide legislation, defines a de facto relationship to be one where:
“a) the persons are not legally married to each other; and
b) the persons are not related by family…; and
c) … they have a relationship as a couple living together on a genuine domestic basis.”
As can be seen the legislation is therefore gender neutral.
Victorian State Law
Formalities – Registration of same sex relationship –
Same sex de facto couples have been able to register their relationships with the Registry of Births, Deaths and Marriages in Victoria since 2008. This has had the effect of according same sex de facto couples the same rights as their heterosexual counterparts. The act of registration provides conclusive proof of the existence of the relationship and assists in such matters as accessing superannuation death benefits, securing inheritance rights, assisting in medical decision making and in many others.
Overseas Unions –
Since December 2015 Victoria (as well as three other states) has recognised same sex marriage and civil partnerships performed overseas, providing automatic recognition of such unions in their respective state registers.
However, this does not have the effect of according that foreign marriage formal recognition. Marriage remains a federal law matter.
Children and Access to IVF –
Since the passing of the Assisted Reproductive Treatment Act 2008 single women and lesbian couples have been able to access assisted conception procedures.
The Status of Children Act 1974 in Victoria, was amended to clarify that a non-birth mother in a lesbian relationship is recognised as the other legal parent of any child or children conceived during their relationship. This is also mirrored in Federal legislation under Section 60H(1) of the Family Law Act 1975 which was amended to acknowledge both members of a lesbian couple as the legal parents of any baby born through IVF if the couple were living together when conception occurred.
The experienced Family Lawyers at Pearce Webster Dugdales can help you navigate this complex and ever-evolving area of the law.
Please contact us for an obligation-free preliminary discussion.