When it comes to property settlement and parenting issues, Australian family courts treat same sex couples no differently to married and de facto couples. The only thing that had previously distinguished same sex couples was the fact they could not marry under the Marriage Act 1961.
On 15 November 2017 the Australian Bureau of Statistics confirmed Australia’s historic “Yes” vote in the federal government’s same sex marriage survey.
Subsequent to this, the Australian Parliament passed a bill legalizing same sex marriage on 7 December 2017.
This bill took effect on 9 December 2017. As of this date, same-sex couples can lodge a Notice of Intended Marriage to commence the one month minimum notice period required before the solemnization of marriages under the Marriage Act.
The first day same sex couples will be able to get married in Australia is 9 January 2018.
As long-time supporters of marriage equality we are proud that marriage equality has now become enshrined in Australian law.
Same Sex Relationships and De Facto Relationships
People in a same sex relationship who choose not to get married can be considered to be in a de facto relationship, provided that they meet certain criteria.
Australian family courts treat same sex de facto relationships no differently to heterosexual de facto relationships.
What constitutes a same sex de facto relationship?
Section 13A of the Interpretation Act 1984 (WA) sets out the various factors used in determining the existence of a de facto relationship in Western Australia, such as:
- the length of the relationship;
- whether the parties have resided together;
- the degree of financial dependence or interdependence; and
- the degree of mutual commitment by the parties to a shared life.
Section 13A of the Interpretation Act also states that “it does not matter whether the persons are different sexes or the same sex.” The de facto relationships of gay, lesbian, bisexual, transgender and intersex people are all legally recognised.
Under the Family Court Act 1997 (WA), the Family Court of Western Australia may only make property orders in relation to a de facto relationship if:
- the parties have lived together in a de facto relationship for at least two years; or
- there is a child of the relationship under 18; or
- a party has made substantial contributions and failure to make property orders would result in serious injustice to that party.
Am I entitled to anything if my same sex relationship breaks down?
If your relationship meets the criteria for a de facto relationship, then the Family Court of Western Australia can make property orders, including orders on your entitlements.
Property settlement in a same sex separation is treated the same as any de facto property division in Western Australia and the division of property of a de facto couple is largely the same as the division of property of married couple
The difference is in the apportionment of superannuation. In Western Australia, there is no right to split or roll over superannuation entitlements.
The limitation period for applying for de facto property orders in the Family Court of Western Australia is two years from the date of separation.
The Family Court of Western Australia uses a four-stage process for determining de facto property settlements.
Learn more about the process and Property Settlement here.
Same Sex Divorce Lawyers
Our Perth and Joondalup family lawyers have represented many LGBT clients.
CS Family is proud to be a progressive, inclusive, forward-thinking legal practice that supports marriage equality and equality before the law.
We can help LGBT clients with:
- Property and Financial Issues
- Child Custody and Parenting Issues
- Binding Financial Agreements
- Child Support Agreements
- Restraining Orders