Australia is still awaiting marriage equality, however, same-sex couples do have many rights from a family law perspective. Same-sex relationships can be classified as “de facto relationships” if they satisfy certain criteria.
Just like heterosexual de facto couples, same-sex de factos may apply to the Family Court for a property settlement. They can also seek maintenance payments from their former partner if they are unable to adequately support themselves.
De Facto Entitlements under the Family Law Act
In Western Australia, de facto couples are governed by the Family Court Act 1997 (WA). This very closely reflects the Family Law Act 1975 (Cth), which governs married couples throughout Australia, and de facto couples in every other state. The main difference is that de facto couples in Western Australia (including heterosexual couples) cannot divide/split their superannuation if they separate.
For example, Jack and Tom lived together in Perth as a de facto couple for 12 years. Jack runs a successful importing business. Tom gave up his well-paid career to support Jack and assist in Jack’s business. Tom did unpaid bookwork for the business and was almost solely responsible for running their household. Their house was bought in Jack’s name for tax reasons, but they both contributed to the deposit. When they separate, Jack cuts Tom off from the business finances and asks him to leave their home. Tom can apply to the Court for a property settlement which takes into account the value of the business, the house and any other assets they have. Although Jack and Tom’s respective superannuation entitlements will be taken into account, they cannot be split or divided. Tom can also seek maintenance payments from Jack if Tom is unable to support himself adequately.
Couples from de facto relationships can enter into a Financial Agreement (a “pre-nup”) before or during their relationship, which determines how their property will be dealt with if they separate. This applies equally to same-sex couples.
Powers of the Court
Same-sex parents can also apply to the Family Court for orders regarding their children.
In Western Australia, if a woman undergoes an artificial fertilisation procedure and has a child, both she and her female de facto partner at the time of the procedure are the legal parents of that child. This is different for heterosexual couples, as the male de facto partner would not legally be the child’s father in Western Australia.
Where one party is not legally or biologically the child’s parent, they can still apply for parenting orders if they are a person concerned with the child’s care, welfare or development.
For example, Sally became pregnant through an artificial conception procedure using her own ovum and sperm from a close friend. The sperm donor is not legally the child’s father. Sally met Rachel when she was 3 months pregnant and they commenced dating. They started living in a de facto relationship a few months before Sally’s son, Michael, was born. Rachel and Sally are both heavily involved in Michael’s care and upbringing. They separate when Michael is 6 years old. Although Rachel is not Michael’s legal parent, she can still apply to the Family Court for parenting orders.
If you separate, whether you were in a de facto relationship or married, it is important to know your legal rights. Leach Legal can assist and offers new clients a 15-minute free initial telephone consultation. Contact us today.