Many couples in same-sex relationships have little understanding of their rights to assets or income should they separate. Some people assume:
- they did not have any rights whereas in fact they did;
- they had to pay their ex-partner money after separation whereas in fact they did not have to;
- the whole issue of property settlements is only for ‘married people’.
Below is a general overview of property rights for same-sex couples in the event of separation.
The Law
In 2009, the Commonwealth Government made significant changes to the Family Law Act. This Act has been around since 1975. Until 2009, the Family Court of Australia only assisted married couples when it came to their financial disputes. De facto heterosexual couples and same sex couples were excluded, and had to use State legislation which was often inadequate.
From 2009, after almost 35 years, the Government opened the doors of the Family Court to de facto heterosexual and same-sex couples seeking help in financial matters following a breakdown of their relationship.
It is in some ways an irony that presently Australia’s GLBTIQ community cannot legally marry but, in a manner of speaking, can legally divorce.
Who Is Eligible?
Australia’s Family Courts are now open to almost all couples in de facto relationships as well as married couples.
The only definition now of a de facto relationship is that of a couple, regardless of gender, “living together on a genuine domestic basis”. What this means exactly is open to interpretation. The law accepts that many modern relationships do not always follow the same structure as relationships of old. Each relationship is different and whether a relationship has moved from simply ‘dating’ to ‘de facto’ will depend upon a combination of various factors, including but not limited to:
- whether the couple live together;
- whether there is a sexual relationship;
- whether there is financial dependence;
- joint use of property;
- commitment to a shared life;
- care and support of the children.
It is not essential to have each of the above factors in order for the relationship to be legally deemed ‘de facto’. For example, it may not be necessary that the couple always live together – although this would ordinarily be the case.
How Long Does the Relationship Need to Have Lasted?
Generally speaking, the de facto relationship must be for at least two years. This does not include the period of dating.
That said, the length of the relationship is not a requirement if there is a child of the relationship (and indeed more and more GLBTIQ couples are adopting or having surrogate children). The length of the relationship may also not apply if significant property was purchased during the relationship, major renovations were made to existing property, or there was a significant inheritance during the relationship.
What If The Couple Have Lived Overseas?
Generally speaking, a partnership must have spent at least one third of the defacto relationship in Australia. There are, however, some exceptions to this.
What If I One Person in the Relationship Paid For Everything?
Even if one party was the financially dominant person, had the larger income, bought/owned the house or apartment, paid for the holidays and dinners, the other party may still have rights. The law understands that couples play different, but complementary, roles in relationships. One partner might earn more money, but the other may have an important role in the household performing home duties or as homemaker and parent.
That said, if one party contributed very little to the relationship, whether by way of finances, domestic chores or otherwise, then it may be that they have little claim towards any assets.
What If Somebody Has Special Needs?
In some instances, the Family Court has the ability to consider the special needs of a separated party. This may include a disability, illness, care for the children or even a disparity in earning ability.
What About Pre-Nups?
For de facto couples, there is technically no such document as a pre-nup, as the parties are not married. However, de facto couples can often legally execute a document called a Financial Agreement either before or during the relationship. This document sets out how assets are to be divided in the event of a separation.
It is a personal choice for couples as to whether or not to have a Financial Agreement. Understandably, some couples may see it as inappropriate. Others may see it as a way to ensure peace of mind and ease of resolving disputes in the case of a break up.
