DeFacto and Same-Sex Family Law Reforms
Recently there have been exciting changes in the law at both the Commonwealth and State level which affect the rights of defacto couples whether heterosexual or same-sex in family law.
Commonwealth Law
The reforms aim to ensure that same-sex couples and their families are recognised and have the same entitlements as opposite-sex defacto couples.
The Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 brought all de facto couples including same sex couples under the umbrella of Commonwealth laws relating to spousal maintenance and property settlements (including superannuation splitting).This came into operation on 1 March 2009 and applies to couples separating after that date.Couples separating prior to 1 March 2009 may opt in by consent otherwise their matters are dealt with by the State Courts.
The Same Sex Relationships (Equal Treatment in Commonwealth Laws—Superannuation) Act 2008 and the Same Sex Relationships (Equal Treatment in Commonwealth Laws—General Law Reform) Act 2008. These Acts have the effect of amending 84 Commonwealth laws to eliminate discrimination against same sex couples and their children in a wide range of areas which include family law, child support, superannuation, social security, taxation, Medicare, veteran’s affairs, workers’ compensation, educational assistance. The majority of the changes took effect on 1 July 2009.The following are of particular interest:
- recognition of the child or children of same sex couples: this applies to any child or children born to a same-sex couple during their relationship as a result of an artificial conception process consented to by the non-birth mother.It now means that the law recognises the child or children as the child or children of both the biological and non-biological mother and recognises that the donor is not a parent of the child or children at law. This applies even if the child was born before the change of law.
- child support: changes to the child support legislation now enable same-sex parents who separate to apply for child support
- superannuation: partners and children from same-sex relationships are now eligible for reversionary or death benefits under private and Commonwealth superannuation schemes
- social security and family assistance: recognition of same-sex relationships and the children arising from them to provide the same access to social security and family assistance payments as heterosexual couples;
Defacto Relationship Law
We are experienced in defacto relationship law whether it relates to heterosexual or same sex partnerships.We understand the particular challenges sometimes experienced by same sex couples and their families.We have a steadfast commitment to providing the best service we can to our clients.We are able to assist you with a full range of legal services including
- Cohabitation agreements
- Property settlement matters including the splitting of superannuation
- Spousal maintenance
- Shared care of children and co-parenting matters after separation (including parenting agreements and Court Orders for residency or spending time with a child/ren by consent)
- Court Orders for parental responsibility (without separation)
- Dispute resolution and mediation
- Litigation (where necessary)
- Donor agreements
- Child support matters (including child support agreements and departure applications)
- Enduring Powers of Attorney and Wills (including provision for guardianship) and formulation of guidelines for proposed guardians
- Assistance with Birth Certificate Documentation (including statutory declarationsfor entering two mothers names on a Queensland birth certificates)
When does a defacto relationship exist for the purposes of property settlement and spousal maintenance?
The criteria necessary to determine whether or not a relationship is in fact a defacto relationship for the purposes of the Act include:
1. the duration of the relationship;
2. the nature and extent of the common residence;
3. whether a sexual relationship exists;
4. the degree of financial dependence or interdependence and any arrangements for financial support between parties;
5. the ownership,use and acquisition of property;
6. the degree of mutual commitment to a shared life;
7. whether the relationship is or was registered under a prescribed law of a state or territory as a prescribed relationship;
8. the care and support of children;
9. the reputation and public aspects of the relationship.
The Act provides that it is not necessary for a court to make any particular finding in relation to any of the circumstances in deciding if two persons have been in a defacto relationship.However in exercising its discretion,a court will consider the above factors and whether some or all of them apply.
The Family Law Act now applies equally to married and defacto couples,the proviso being that defacto couples must have separated after 1st March,2009,when the amending Act came into force.If a defacto couple terminated their relationship before 1st March 2009, the Family Law Act does not apply and they do not come within the jurisdiction of the Family Court or the Federal Magistrates Court. They must make application for property settlement under Part 19 of the Property Law Act 1975 as amended, through the State courts system.The exception is if both parties consent to the jurisdiction under the Family Law Act.
The benefits now available to defacto partners under the Family Law Act as amended,which are not available under the Qld Property Law Act as amended, are:
1. the capacity to split superannuation;
2. the capacity to claim spousal maintenance;
3. the capacity to have matters dealt with in the Family Court or the Federal Magistrates Court where there is a likelihood of resolution at an earlier stage and in a much more user friendly way than in the State court system.
Defacto couples must beware. If they separated after 1st March 2009, they must make their application for property settlement or spousal maintenance within 2 years of the termination of their relationship.This limitation does not apply to married couples who can make their application at any time up until 12 months after their divorce order is made.
There is an exception to this 2 year rule for defacto parties. An applicant must satisfy the court that hardship would be caused to a party or to a child of the relationship if leave was not granted to the applicant to apply for property settlement despite being outside the 2 year period. If seeking leave to make an application for spousal maintenance outside of the 2 year limitation period,it is necessary to show that,at the time when the relationship ended, the applicant was not able to support himself or herself without an income tested pension allowance or benefit.
We recommend that you make your application within the 2 year period in order to to protect your rights.You should not assume that leave would be granted for an extension of time in which to make your application.