In Australia same-sex couples and their children have been entitled to the same level of protection under the Family Law Act as heterosexual de-facto couples since March 2009 (and in South Australia, since July 2010).
The changes to the law ensure that separating same-sex couples have the same rights to pursue property settlements and financial settlements under the Family Law Act as opposite-sex de facto couples.
A de facto relationship is defined in section 4AA of the Family Law Act as a relationship between two people who are not related by family and are not legally married and who live together as a couple on a genuine domestic basis.
In family law property settlements, there is no presumption of equality. This means, an equal division of assets is not automatic.
How property is divided after separation depends on the unique set of circumstances applying to that particular relationship.
To start with, the assets, liabilities and financial resources (including superannuation) need to be identified. It really doesn’t matter whether these things are in joint names, only one of the parties’ names, or owned with someone outside the relationship – everything goes in the list.
Under section 90SM(4) of the Family Law Act 1975 (Cth) the Family Court will consider:
- The financial contributions that were made directly or indirectly by the parties or on their behalf (for example, income, inheritance, a gift or loan from parents).
- The non-financial contributions that were made directly or indirectly by the parties or on their behalf to the acquisition, conservation or improvement of property (for example, help renovating a property).
- Contributions that either party made to the welfare of the family, including as the homemaker or parent.
After the contributions each party has made are identified, the Court takes into account other factors, called section 90SF(3) factors. These include things like:
- your age and the state of your health
- each parties’ income and financial resources and ability to earn income and how, or whether that income earning ability, may be affected after a property settlement
- your children, their ages, their health and whether they live with you
- a number of other factors the court may consider to be relevant.
There is no precise science used to work out the appropriate property division, however the Court must be satisfied that the property split is just and equitable after giving consideration to the contributions made by each party and the circumstances of the parties to the relationship.
It is difficult to predict with certainty what the outcome will be without first having a lot of specific information from you that is relevant to your particular circumstances.
A property settlement can be formalized by consent orders or financial agreement.
You want to make sure whatever agreement you reach is legally binding and enforceable and you want finality to your financial relationship and peace of mind moving forward.
It’s a really good idea to get some legal advice to discuss what outcomes and options are available for you, based on your own unique set of facts so that you know what to do moving forward.
For advice about your particular circumstances, get in touch with Megan Sweetlove for a confidential discussion at firstname.lastname@example.org or 08 8274 3848
** DISCLAIMER: This information in this publication is not intended to be legal advice. Information provided on in this publication is for the purpose of providing general information only in relation to Family Law. The information provided is current at the time it is produced. You should not rely on the general information contained in this publication as legal advice. You should consult a lawyer for advice regarding your own specific circumstances.