Author: Vanessa Mathews

De Facto and Same-Sex Couples and Property

Same-sex couples, like all de facto couples, may turn to the courts for orders on division of property, superannuation and maintenance if the relationship breaks down.  The rules applying to de facto couples are somewhat different, though, than those applying to legally married couples.

Can all De Facto couples obtain these orders?

No! Couples can receive these orders from the court only if the court is satisfied that the couple meets one of the following criteria:

• The relationship was at least two years long
• The couple has a child together
• One person made significant financial or nonfinancial contributions to the marital property or as a homemaker or as a parent and would be disadvantaged if the order was not granted
• The relationship was registered (in those states and territories where such registration is possible)

Does it matter where you live?

Yes! The laws apply to de facto couples who have a geographical connection with New South Wales, Victoria, Queensland, South Australia, Tasmania, the Australian Capital Territory, the Northern Territory, Norfolk Island, Christmas Island or the Cocos (Keeling) Islands.   Geographical connection means that at the time the relationship broke down, the couple lived in one of those states or territories.

A court may still give orders on property division, superannuation and maintenance if:

1. The couple lived in one of the above States or Territories during at least one third of their de facto relationship or;
2. The person applying to court for the order made substantial financial or nonfinancial contribution in one of the above States or Territories or;
3. One of the partners ordinarily lives in one of the above States or Territories at the time the application to court is made.

Does it matter when the relationship broke down?

Yes! The Commonwealth laws allowing de facto couples to divide property came into affect only on August 1, 2009 (and in South Australia only on July 1, 2010).  Therefore, in those states and territories where they apply, it’s only for couples whose relationship broke down after those dates.  If a relationship broke down before August 1, 2009 (or July 1, 2010 in South Australia), the laws of the particular State or Territory apply, unless both parties request in writing that the new laws apply.

One or both parties must apply for these orders within 2 years of the breakdown of the de facto relationship.

Can a couple make an arrangement on their own?

Definitely!  De facto couples can make their own arrangements regarding their property, including debts, assets, superannuation and spousal maintenance. 

Financial agreements are covered under Part VIIIA of the Family Law Act of 1975.  These agreements may refer to:

1. Property and financial resources and how they will be dealt with if the marriage breaks down or;
2. The maintenance (financial support) of either of the spouses during and/or after the marriage or;
3. Any other matter related to (1) or (2) above

This agreement can be made at any time during the relationship or after it breaks down (but you must apply for the orders within two years of the breakdown – see above)  and it can be formalized by the court by applying for a consent order.  Once a consent order is made, it has the validity and enforceability of a court order issued by a judge.  Both parties must apply for a consent court order for a property agreement by completing the Application for Consent Orders.  You do not need to go to court to apply for consent orders.

This financial agreement is only binding if:

1. both partners signed it and
2. both partners received independent legal advice about the agreement.   Partners are not allowed to receive advice from the same lawyer.

For further information on property division in the court see “Property and Money”.

De facto couples can make their own financial arrangements, like any other legally married couple in Australia, or they can turn to the courts to receive a court order. In order to turn to the courts, the de facto couple must meet one of the following conditions:

1. The relationship existed for at least two years OR
2. The couple has a child together OR
3. One person made significant financial or nonfinancial contributions to the relationship and would be at a disadvantage if no order was granted OR
4. The relationship was registered

1. How long you’ve been together

2. Your home – how long you’ve been living together and to what extent is it a joint home

3. Is there a sexual relationship

4. Your financial commitment to one another, ie, does one partner support the other?

5. Whether or not there is joint property. If there is, the court will ask how the property was acquired and used

6. The nature of the commitment and if it is mutual

7. Whether or not your relationship was registered (in those territories where registration is possible)

8. If there are children, the court will want to know who cares for them, makes decisions for them and supports them

9. How other people see your relationship

10. How you and your partner behave in public, ie as a couple or leading separate lives

 

De Facto relationships are defined in Section 4AA of the Family Law Act 1975. A relationship is de facto if:

1. The partners are not legally married to each other and;
2. They are not related by family and;
3. In all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Many couples today are in committed relationships that are not legally recognised as marriages in Australia. Some opposite sex couples choose not to marry for reasons of conscience or religion. In the case of same-sex couples, the law does not (yet) permit marriage. But the law grants these de facto couples virtually all of the same rights – and responsibilities – as legally married couples. These include laws on division of property, maintenance, child custody and child support.

 

Under Australian family law, child support following a divorce is governed under the Child Support (Assessment) Act of 1989. Child Support Agency is the institution responsible for evaluating how much child support should be paid and also for collecting it from the parent. This agency falls under the control of the Department of Human Services. The Child Support Agency performs functions such as evaluation upon receiving an application from the parent who has custody of children. A specific formula is being used to determine the amount of child support that the other parent is liable to pay.

The formula takes into account a number of factors such as the annual income of both the parents, the age of the child and the costs that may be reasonably expected in taking care of the child. In order to arrive at a more equitable assessment, the formula also takes into consideration how much time the mother and father spends with the child. To further prevent overburdening either parent, the formula also considers whether the parent is already liable to pay child support as a result of an earlier divorce. The formula is also available on the website of the Child Support Agency and can be used by the parents independently.

In few special circumstances, however the law permits some deviation from the prescribed formula. One such situation might involve either parent incurring substantial expense in traveling over to spend time with the child. In cases where the actual financial resources of the parent differ from their declared income, the difference may also be taken into account to arrive at a fairer assessment.

In most cases, the child support payments are made to the Child Support Agency every month, from where they are then forwarded to the parent in custody of the child.

The Australian family law is unique in a way that it does not require the divorce applicants to prove the fault of any partner. This is called a no-fault divorce. All that is required is that the partners have been separated for a period of 12 months and that there are no chances of their getting back together. It is also not necessary for a joint divorce application to be filed. Australian family law allows either partner or both jointly to file an application for divorce.

The court needs to be certain that the marriage has broken down irretrievably and that there is no hope for reconciliation at all. This requirement is particularly acute if the partners have been married for a period under two years. To ensure that the partners are not getting a divorce in haste, the court requires a certificate signed by a counseling agency to be filed with the divorce papers. This certificate attests that the partners have sought counseling as a means to seek reconciliation before applying for a divorce process in Australia. Similarly, if either spouse cannot be traced, the applicant can pursue the divorce application as long as they demonstrate that they have made efforts to locate the untraceable spouse.

Usually, the divorce proceedings do not take much time if there are no minor children involved. However, if the custody of children under 18 is an issue, then the applicants need to demonstrate that they have made adequate arrangements for the care of their children after the divorce. More so, unless a joint application is made by both partners, the applicant needs to be present at the hearing if there are children under 18 involved.

If either partner wishes to oppose an application of divorce filed by the spouse, he or she may file a response to the divorce application or a response to the jurisdiction if they feel that the divorce has not been filed in the right jurisdiction.

As long as you were separated for 12 months and a day – even under one roof – you are eligible for divorce, whether your husband wants the divorce or not.  You can fill out the divorce application by yourself, completing all of the information about him. If you don’t know some of the answers, just write in “not known” on the form.

Sometimes there are variations of separations.  Perhaps you separated under one roof for three months and then one of you moved out for another 9 months.   If you lived under one roof for any part of the 12 months required prior to filing for divorce, you need to file an affidavit along with your divorce application.  An affidavit is a statement made by you or another person, serving as your testimony about particular issues.

In your affidavit, you need to show that you and your spouse separated even though you were under one roof (see above) and you need to explain why you remained living in the same house.   You also need to explain what the living arrangement were for any of your children who were under 18 during the separation and what government agencies you told about your separation.

Pretty much what you would have done if one of you had moved out.  But now you may be required to prove that you are leading “separate lives”.  Social Security law breaks down the relationship into five categories when determining whether or not there was separation under one roof.

1. The financial aspects of the relationship.  Have you separated out your finances?  Do you hold different bank accounts?  Is there a property settlement or did you seek legal advice about dividing your property?

2. Nature of the household.   This factor considers the physical separation within the house, making you and your spouse independent of one another.   Are you living in separate rooms?  Have you stopped eating together?  Do you no longer help each other with laundry, cleaning, cooking and shopping?

3. Social Aspects of the Relationship.  This has to do with how you are viewed by others.  Do you no longer go out together – to functions, parties, holidays – as a couple?  Have you told other people that you are no longer together?  Do one or both of you have a relationship with someone else?

4. Absence of a sexual relationship.

5. Nature of the Commitment.  This factor considers whether the level of commitment between the partners has changed.  Have you stopped discussing joint plans for the future?  Would you help the other person in a time of crisis?

A court may consider any or all of these factors when deciding whether or not the separation requirement was fulfilled.

Many people find themselves in the same situation.  You’re still receiving the same income but suddenly you need to pay for two homes.  The law in Australia recognizes this problem and allows for something called “separation under one roof”.  This means you are still living in the same house but are no longer together as a married couple.