Same Sex Property Settlements & Rights
The law treats same sex de facto couples and married couples in the same way that it treats heterosexual de facto couples and married couples in relation to the division of the property of a relationship (property settlement).
For the purposes of the Family Law Act 1975 (Cth), a person is in a “de facto relationship” with another person if they are not legally married to each other, not related by family and they share a relationship as a “couple living together on a genuine domestic basis”.
A party wishing to make an application to the Family Court or to the Federal Circuit Court seeking Property Orders must have been in a de facto relationship with the other party for at least 2 years unless there is a child or children of the relationship. If there is a child of the relationship, the two-year rule does not apply and an Application can be made seeking Property Orders by a party to a de facto relationship that broke down after less than two years.
By comparison, a party to a marriage can make an application for property orders even if the marriage is of less than two years duration.
Under the Family Law Act 1975, the Courts have the power to make orders altering the interests of parties in the property of the relationship or marriage. The Courts have a wide discretion in determining an appropriate property settlement, and in exercising that discretion, they apply a four-step process:
- Identify and value the property of the parties;
- Assess the financial and non-financial contributions of the parties towards the property;
- Financial contributions include initial contributions and contributions made during the relationship for example, by way wages, gifts, inheritances and redundancy payments;
- Non-financial contributions include contributions such as undertaking home renovations and homemaker and parenting contributions.
Where there has been a long marriage or de facto relationship and both parties have acquired the property together over the course of the marriage or de facto relationship, a court may find equality of contribution.
- Assess whether any Section 75(2) or Section 90SF(3) factors exist that would justify a percentage adjustment in favour of one of the parties. Such factors include:
- The age of the parties.
- The state of health of the parties.
- The income, property and financial resources of the parties.
- Whether either party has the care or control of the child or children of the marriage or de facto relationship who was under 18 years of age.
- Any child support that is being paid by a party for a child of the marriage or de facto relationship.
- A court may make a percentage adjustment in favour of a party who has higher section 75(2) or 90SF(3) factors.
- Assess whether the proposed settlement is just and equitable in all of the circumstances.
A court must make an order for property settlement that is just and equitable in all of the circumstances. The court will look at what the proposed percentage split of the property means in dollar terms and assess whether it is just and equitable in all of the circumstances. A court has a wide discretion when determining a property settlement.
Same Sex Parentage
Under the Family Law Act 1975 a non-biological mother in a same-sex relationship can be legally recognised as a parent, provided that:
- The biological mother and her partner were living together as a couple on a genuine domestic basis when the artificial conception procedure took place; and
- The biological mother consented to the artificial conception procedure.
The biological mother’s partner can be recorded on the birth certificate of the donor conceived child as a parent. The sperm donor can also be recorded on the child’s birth certificate but will be recorded as the Sperm Donor, not as a parent.
In parenting disputes, the Court must consider the best interests of the child as the paramount consideration irrespective of whether the parents were in a same-sex or opposite sex relationship. The provisions in the Family Law Act relating to children’s arrangements apply uniformly to both heterosexual and same sex couples, and they do not differentiate between them.
Every parent has a primary duty to maintain their child. This duty extends to parents in same sex relationships who have legal parentage. Child support payments are often administered by the Child Support Agency at the Department of Human Services or are otherwise privately arranged between parents. The amount of child support payable is calculated using a formula, which accounts for, amongst other factors, the parents’ respective incomes and the time a child spends with each parent.
Same Sex Relationships & Divorce
In order to apply for a divorce, same sex couples who are married must file an Application for Divorce in the Federal Circuit Court of Australia along with a copy of their marriage certificate and the court filing fee.
Where there are children of the marriage under the age of 18, the applicant parent will need to provide brief information about the children’s care arrangements, including housing, education, health, financial support and communication with each parent. Note that, providing this information as part of an Application for Divorce does not formalise children’s arrangements. The Court requests this information because it can only grant a Divorce Order if satisfied that there are proper arrangements in place for the care of the children.
If the parties have separated under the one roof, they will also need to provide evidence in the form of an Affidavit to the Court demonstrating that they are not living together as husband and wife, despite cohabiting. For example, parties might indicate that separation has occurred by way of a change in sleeping arrangements, a reduction in shared activities, separation of finances and/or through notifying family and friends.
At Farrell Family Lawyers we are experienced in providing advice to same-sex clients about their legal rights in relation to same sex relationships and all family law issues and invite you to contact us to discuss any questions that you may have.