Following reforms to Australian law in March 2009, same-sex couples and their children are entitled to receive the same level of protection under the law as opposite-sex couples and their families.
This article takes a look at the main laws that may affect same-sex couples, including property/assets, children and deceased estates.
Which same-sex relationships are recognised by law?
Same-sex marriage has been legal in Australia since 9 December 2017, so people in these relationships have all the rights as any other marriage.
A de facto relationship is when you and your partner have a relationship and live together as a couple but are not married. These relationships have the same rights as married couples, however issues may arise when it comes to proving your relationship is indeed de facto if you haven’t officially registered your relationship.
If there is a dispute about whether two people are in a de facto relationship or not, the court will look at:
- the length of the relationship
- the living arrangements
- whether there is or was a sexual relationship
- the way finances were arranged
- whether you owned property together and how you bought it
- whether your relationship was registered under state or territory law
- whether you had or cared for children together
- the way you presented your relationship in public
Settling property and assets when a relationship breaks down
Whether you’re in a marriage or de facto relationship, you can start negotiations about your assets as soon as the relationship has broken down.
Assets may include:
- Real estate
- Personal property
- Property owned before the relationship
Once you come to an agreement about how your assets are to be divided, it can be a good idea to formalise your agreement in the form of Consent Orders filed with the Family Courts of a Binding Financial Agreement entered into with the assistance of solicitors. This helps to prevent disputes down the track, should one of the parties change their mind or decide to ask for more.
If you’re unable to agree, you can make an application to the Family Court or the Federal Circuit Court for a property settlement under the Family Law Act.
If you do wish to apply to the court, you must do so within 12 months of your divorce becoming final or within two years of the separation if your relationship is de facto.
How the court divides your assets
This is very much decided on a case-by-case basis, however areas of consideration include:
- The assets that form part of the asset pool to be divided between the parties and the value of each
- Contributions of each party during the relationship – in terms of financial, non-financial and to the general welfare of the family – all of which are considered within the context of the relationship as a whole
- Whether there is any need for adjustment based on the future needs of the parties or any other relevant factor – eg. will one party be responsible for caring for the children, or is one party incapable of earning an appropriate income
Of course, it’s highly recommended to work with a lawyer for settlement. This will ensure you get everything you need and are entitled to, as well as give you peace of mind that all matters are resolved according to the law and cannot be changed or disputed in the future.
Children of same-sex couples
Family law legislation states that most children born to or adopted by same-sex couples will be recognised as children of both parents, who will be recognised as legal parents with regard to parenting matters and child support. This includes:
- Certain surrogacy arrangements
- Artificial or assisted insemination for lesbian couples
Whatever the situation regarding the relationship, the court will always base its decisions regarding parenting arrangements on the best interests of the children. Generally, the court will consider:
- Where the children will live and how much time they will spend with each parent
- How their time will be shared for special events, such as birthdays and Christmas
- How decisions will be made about the children
- The role of other important people in their lives, such as grandparents, step-parents etc
Should issues arise with these arrangements, or they are not complied with, the parents are required in the first instance to attend Family Dispute Resolution. If the matter cannot be resolved here, it will proceed to Court.
Child support can apply to you if you are in a same-sex marriage or de facto relationship, if your name appears on the child’s birth certificate or if you have signed a statutory declaration that you are a parent.
The amount of child support that should be paid is decided by a mathematical formula. This is determined by way of a child support assessment, which takes into account factors such as:
- Number of children involved
- Age of the children
- Parents’ income
- Level of care each parent provides for the children
This of course can be varied if and when circumstances change for either parent.
Wills and Estate Planning for same-sex relationships
When it comes to Wills and Estate Planning, regardless of the type of relationship you’re in, it’s always best to update your Will whenever your life circumstances change.
In Australia, marriage revokes a Will that is made before marriage. So if you don’t make a new Will after you get married or make a Will beforehand that expressly contemplates the marriage, and one of the parties passes away, in the eyes of the law you are considered to have no Will.
In this instance, the person will be regarded as dying “intestate”, which means their assets are divided in accordance with the legislative pathway for dividing the deceased’s assets (rather than in accordance with their wishes)..
Often, in this instance, the assets will initially go to the spouse – although this is not guaranteed. Under intestacy rules a spouse is considered someone who was:
- Married to the deceased at the time of their death
- In a domestic partnership with the deceased at the time of their death
A domestic relationship refers to:
- A personal relationship between two adults who are not married but live together on a genuine domestic basis
- A de facto relationship that has been in existence for more than two years without separation
There can however be exceptions to this if children are involved, or significant contributions to joint property have been made.
When it comes to Wills, you can’t leave anything to chance. Even if you’re married, without a Will you can’t be 100% sure that all your assets will be divided exactly how you would like when you die. The same goes if you’re in a same-sex de facto relationship, although further complications can arise if there are any questions regarding the validity of your relationship.
As you can see, even though same-sex relationships now have equal rights in Australia, they also come with equal potential for issues and complications.
So we always recommend speaking with a lawyer to ensure you have all your affairs in order before any issues arise, so you can deal with them much more smoothly and efficiently.
The above is general in nature and is not intended as legal advice. You should obtain legal advice in relation to your own specific circumstances.