The laws relating to property settlement at the end of a de facto relationship have recently changed. For relationships that have broken down since 1 March 2009, the Family Court now deals with all of the legal aspects of the separation, including any:

Child Support Agreement,

Parenting Plan or

Parenting Order.

Child Support

Child Support can be sought via the Child Support Agency or a Child Support Agreement.

Parenting Orders. may be sought in the Local Court, the Federal Circuit Court or the Family Court. The principles that apply to the children of marriages also apply to the children of de facto relationships.

Separation agreements are a type of Binding Financial Agreement. A separation agreement is entered into in anticipation of, or at the conclusion of a de facto relationship. These agreements can provide for the division of the parties’ property and maintenance.

Binding Financial Agreements can be made between parties to a de facto (including sex couple) relationship. These agreements can be made before, during or after the de facto relationship.

Parties to a de facto relationship can make binding financial agreements. A financial agreement can be made either before the relationship begins (often known as a ‘pre-nup’), at any time during the relationship or on separation. The agreement can cover matters such as:

• responsibility for expenses,
• classification of property owned by the parties as either joint or individual property,
• the categorization of property acquired during the relationship as either joint or individual,
• responsibility for debts and
• the division of property and maintenance if the couple  separates.

If you have come to an agreement without legal advice, you should obtain advice before you sign anything. Mathews Family Law & Mediation Specialists can provide you with the advice needed to make an informed decision before you enter into a binding financial agreement. We can also assist by drafting the agreement for you to ensure that it covers all the legal requirements that you may not have thought of.

Mathews Family Law is a leading family law firm in Australia. Please contact us on 1300 635 529 to speak with our specialist family law lawyers and divorce lawyers today. You can also send through your enquiry online now and one of our family law attorneys will be in touch to discuss your property settlement matter or binding financial agreement matter.

De facto partners can now be compelled to pay maintenance to the other partner after separation under the same provisions that apply to separated married couples.

One difference for a de facto maintenance Order is that it will automatically end if the party receiving maintenance marries. In the case of the receiving party entering into a de facto relationship, the paying party can apply to have the Order set aside.

A de facto relationship is defined as one in which a couple lives together in a genuine ‘domestic situation’.  There will be a close personal relationship between two adults whether related to one another or not, one or each of whom gives domestic support and personal care.

A Court will make Orders if it is satisfied that:

• the couple had a child together,
• the couple lived together for at least two years or

• the applicant made financial or non-financial contributions or cared for the other party’s child and injustice would result if an order were not made.

The laws relating to property settlement at the end of a de facto (including gay or lesbian de facto relationship – see Same sex couples) have recently changed. For relationships that have broken down since 1 March 2009, the Court now deals with all of the legal aspects of the separation, including any parenting agreement, property settlement and maintenance. As a result, parties to relationships that have broken down after 1 March 2009 may have more extensive entitlements and obligations than they would have had under State law.

The lawyers at Mathews Family Law & Mediation Specialists Melbourne understand the difficulties involved and the unique nature of individual relationships. We have extensive experience negotiating property settlements for couples who have a substantial asset pool, such as a major property/share portfolio or a family business. The process of a breakdown in a de facto relationship can be just as complex as divorce. We understand both the emotional and the commercial implications of splitting assets. We are committed to ensuring a fair settlement is achieved as quickly as possible, we aim to reduce the time taken and therefore the cost to you.

In addition to helping couples after a relationship breakdown, we can also provide advice to clients who may be considering entering into a de facto relationship and want to protect their assets and financial independence.

Surrogacy – when another woman carries and gives birth to a child for another person and then gives that child over – started thousands of years ago when infertile women offered their handmaids to childless husbands.  Since then, the technology has advanced quite a bit and now includes many variations of the traditional surrogate. These scientific developments – including IVF and the ability to freeze sperm and eggs – have necessitated legal changes throughout the world. Questions abound regarding the ethics of surrogacy, the legal status of the surrogate and the parents and the ability of nontraditional families (same-sex couples, singles) to use surrogates to have children.

There are two types of surrogacy. In traditional surrogacy, also known as genetic contracted surrogacy, the egg is from the surrogate and the sperm is donated by the father. This links the fetus genetically to the surrogate.  Gestational surrogacy involves both an egg and sperm donation (one or both may come from the intended parents) and involves In Vitro Fertilization (IVF), in which the egg is fertilized in a petri dish, and the embryo is then implanted into the surrogate. The surrogate has no genetic connection to the fetus with gestational surrogacy. This distinction is important for determining who are the legal parents of the child and what citizenship the child obtains.

The laws surrounding surrogacy in Australia are somewhat complex. Commercial surrogacy, where a woman is actually paid to carry the child, is illegal in all states in Australia. Overseas commercial surrogacy – primarily in India, the United States and Thailand is against the law in New South Wales, Queensland and the Australian Capital Territory. Altruistic surrogacy, in which a woman has no financial gain from carrying the child (although reasonable expenses, such as medical costs, travel, work lost, are covered by the parents) is legal in all states in Australia. The Assisted Reproductive Treatment Act 2008 (ART Act) came into force in Victoria, Australia in 2010, and opened more doors for surrogacy.

Some Important Laws on Surrogacy in Victoria in the ART Act

1. The woman serving as s surrogate must be at least 25 years old, previously gave birth to a live child and is NOT using her own eggs in the surrogate pregnancy (gestational surrogacy).
2. Everyone involved in the surrogacy arrangement must be approved by a Patient Review Panel. The Panel will make sure that all of the requirements in (1) are met and, in addition, that all those involved received legal advice and counseling.
3. The Patient Review Panel may approve a surrogacy plan, even if all of the conditions in (1) and (2) above have not been met, in exceptional circumstances.
4. Those involved may also have to undergo a police check (to determine if there is a criminal record) and a child protection order check.
5. No advertising!  Nobody may “publish” any type of notice or advertisement regarding a person’s willingness to be a surrogate or a person’s search for a surrogate.

Throughout the world, same-sex marriage is being legalized.  Eleven countries, including South Africa, Argentina, Belgium and Spain, now recognize same-sex marriages.  Nine states in the United States have legalized it.  Most recently, New Zealand legalized marriage between members of the same gender, a vote that was wrought with so much emotion the parliament literally erupted in song.  Some Parliament members in Australia are calling for marriages conducted in New Zealand to be recognised in Australia.

Australia is not quite there yet.  In 2009, the first bill for same-sex marriage was brought before the federal parliament in Australia.  That bill, and the one brought in February 2010, did not pass.  Most recently, in September 2012, two bills permitting same-sex marriage were defeated in both houses of the Parliament.  The Prime Minister, Julia Gillard, supported the bills but allowed members of the ALP a conscience vote.

It’s not clear when, but same-sex marriage in Australia is headed toward legalization.  Public opinion is strongly in favor.  In a recent poll taken by the Essential Report, 54% of Australians said they thought same-sex marriage should be allowed, with only 33% saying that it should not be permitted.  Interestingly, 62% of women polled supported it while only 46% of men said same-sex marriage should be legal.  Once legal recognition comes, the laws applying to heterosexual marriages will also apply to same-sex marriages.  For better or for worse….

Marriage between two members of the same gender is not legally recognised in Australia.  All of Australia grants rights to same sex couples in de facto relationships.  Some states, like NSW, Tasmania and Victoria have domestic partnership registries.  In Queensland, parties can enter into a civil partnership.

In 2004, the Australian government amended The Marriage Act 1961 to define marriage as a union between a man and a woman.  Despite this, in 2008 the Australian government enacted reforms which gave same-sex de facto couples the same rights and obligations as all other de facto couples.  These include areas of taxation, social security, health, elderly care, employment, veterans’ benefits and child support (several of these should have a link to another page on that particular right or obligation).  Many of the same laws apply regarding property division, maintenance and child custody for same-sex couples whose relationships break down.   This brings the 33,714 couples who declared they are in same-sex relationships in the 2011 census that much closer to legal marriage.

Some states allow same-sex couples to register their unions officially, as civil partnerships or under another name.  In Victoria, couples may register their relationships with the Registrar of Births, Deaths and Marriages.  Interstate unions, however, are not recognised in Victoria.

But a de facto relationship is not the same as a marriage.  In order to be recognised as a partner in a de facto relationship, a couple must meet certain criteria not required of married couples.  For example, de facto couples must prove they live together “as a couple”, which is determined by a list of conditions including the length of the relationship, whether or not a sexual relationship exists, the acquisition, ownership and use of property, and whether others view them as a couple.  No such requirements exist for married couples.