Property rights of same-sex couples in family law

Date: Jun 02, 2015

The recent referendum in Ireland on same-sex marriage has resulted in a "yes" vote. This has again brought into focus the rights of same-sex couples in Australia.

On 31 May 2015, a marriage equality rally was held in Sydney, with Tony Abbott's sister Ms Forster as one of its key-note speakers. "The latest polling was that 72 per cent of people are in favour [of gay marriages] and that's a pretty significant majority and that's a bigger majority than Ireland".

The legalisation of same-sex marriages in Australia will, undoubtedly, impact on the rights of same-sex couples under various family law provisions, including their property rights on separation.

At present, same-sex couples have the same property rights under the Family Law Act as de-facto couples and can access the provisions applying generally to de facto couples with respect to property settlement on separation.

According to the Family Law Act, a de facto relationship exists if, having regard to all the circumstances of their relationship, two people "have a relationship as a couple living together on a genuine domestic basis". If a same-sex couple can establish that they have been living in a de-facto relationship for at least two years, they can apply to Court for

Orders with respect to the division of their property, maintenance (financial support of one partner by the other), and superannuation splitting.

Same-sex de-facto couples can also resolve existing or potential property issues by entering into a financial agreement with each other under the Family Law Act, either before, during or upon a break-down of their relationship.

If same-sex partners have been in a relationship for less than two years or resided for most of the duration of their relationship in Western Australia, they have to continue to resort to state and territory laws for relief in disputes regarding any financial matters. In New South Wales, such relief may be available under the Property (Relationship) Act 1984, provided the partners can show that their relationship is either a de-facto relationship or domestic relationship satisfying the definitions of the NSW Act.

Although the financial consequences of relationship breakdown for same-sex de-facto couples are now the same as those for married couples, debate about choice, equality and protection in the context of Family Law Act provisions is more alive than ever.

For more information about cohabitation agreements, contact a family lawyer at Craddock Murray Neumann.