Same-Sex De Facto Relationship Rights

Same-sex de facto relationship rights in Perth 

Since marriage equality came into effect in December 2017, same-sex couples in Australia can marry. Many couples choose not to, and the law recognises them as a de facto couple where they live together on a genuine domestic basis and meet certain criteria. If you are an unmarried couple, understanding your rights matters just as much as it would for a married one, particularly where a business or other significant assets are involved. 

When a de facto relationship is recognised 

A de facto relationship is generally recognised when a couple has lived together on a genuine domestic basis for at least two years. That requirement can be set aside in some circumstances, such as where there is a child of the relationship or where one partner has made significant contributions. Same-sex couples are treated in the same way as any other de facto couple once these criteria are met. 

Property and financial rights 

Same-sex de facto couples can apply to the Family Court for a property settlement in the same way as heterosexual de facto couples. When dividing property, the Court looks at the length of the relationship, the financial contributions each partner made, the non-financial contributions each made, such as caring for children or maintaining the home, and each partner’s future needs, including earning capacity, health and age. 

In Western Australia, financial matters for de facto couples are dealt with under this state’s own family law regime rather than the Commonwealth legislation that applies to married couples and to de facto couples elsewhere in Australia. The rules are similar, but there are differences, so it is sensible to confirm how they apply to your circumstances. Time limits also apply to de facto claims, so getting advice soon after separation protects your position. 

For business owners, this is significant. A property settlement can take into account the value of a business, the family home and other assets, even where an asset is held in one partner’s name. Contributions to a business, including unpaid work such as bookkeeping or running the household, can be recognised. A partner may also seek spousal maintenance where they cannot adequately support themselves. 

Couples can set terms in advance. A Financial Agreement, sometimes called a pre-nup, can be entered into before or during a relationship to determine how property will be dealt with on separation. This applies equally to same-sex couples and is a practical step where one partner brings a business into the relationship. 

Children and parenting 

Same-sex parents can apply to the Family Court for orders about their children. In Western Australia, where a woman undergoes an artificial fertilisation procedure and has a child, she and her female de facto partner at the time of the procedure are both recognised as the child’s legal parents. 

Where a person is not the legal or biological parent of a child, they may still apply for parenting orders if they are concerned with the child’s care, welfare or development. The child’s best interests remain the primary consideration in any parenting decision. Parenting arrangements can be recorded in a parenting plan or in consent orders approved by the Family Court, which gives both parents certainty about care and decision-making. 

Talk to a specialist 

Whether you were married or in a de facto relationship, knowing your legal rights before you act puts you in a stronger position. Leach Legal is home to the largest team of specialist family lawyers in WA, and we are in your corner from start to finish. New clients are offered a free 15-minute initial telephone consultation. Contact Leach Legal today.