De Facto and Same-Sex Couples and Property

Same-sex couples, like all de facto couples, may turn to the courts for orders on division of property, superannuation and maintenance if the relationship breaks down.  The rules applying to de facto couples are somewhat different, though, than those applying to legally married couples.

Can all De Facto couples obtain these orders?

No! Couples can receive these orders from the court only if the court is satisfied that the couple meets one of the following criteria:

• The relationship was at least two years long
• The couple has a child together
• One person made significant financial or nonfinancial contributions to the marital property or as a homemaker or as a parent and would be disadvantaged if the order was not granted
• The relationship was registered (in those states and territories where such registration is possible)

Does it matter where you live?

Yes! The laws apply to de facto couples who have a geographical connection with New South Wales, Victoria, Queensland, South Australia, Tasmania, the Australian Capital Territory, the Northern Territory, Norfolk Island, Christmas Island or the Cocos (Keeling) Islands.   Geographical connection means that at the time the relationship broke down, the couple lived in one of those states or territories.

A court may still give orders on property division, superannuation and maintenance if:

(1) The couple lived in one of the above States or Territories during at least one third of their de facto relationship or;

(2)The person applying to court for the order made substantial financial or nonfinancial contribution in one of the above States or Territories or;

(3)One of the partners ordinarily lives in one of the above States or Territories at the time the application to court is made.

Does it matter when the relationship broke down?

Yes! The Commonwealth laws allowing de facto couples to divide property came into affect only on August 1, 2009 (and in South Australia only on July 1, 2010).  Therefore, in those states and territories where they apply, it’s only for couples whose relationship broke down after those dates.  If a relationship broke down before August 1, 2009 (or July 1, 2010 in South Australia), the laws of the particular State or Territory apply, unless both parties request in writing that the new laws apply.

One or both parties must apply for these orders within 2 years of the breakdown of the de facto relationship.

Can a couple make an arrangement on their own?

Definitely!  De facto couples can make their own arrangements regarding their property, including debts, assets, superannuation and spousal maintenance.  Financial agreements are covered under Part VIIIA of the Family Law Act of 1975.  These agreements may refer to:

(1) Property and financial resources and how they will be dealt with if the marriage breaks down or;

(2)The maintenance (financial support) of either of the spouses during and/or after the marriage or;

(3)Any other matter related to (1) or (2) above

This agreement can be made at any time during the relationship or after it breaks down (but you must apply for the orders within two years of the breakdown – see above)  and it can be formalised by the court by applying for a consent order.  Once a consent order is made, it has the validity and enforceability of a court order issued by a judge.  Both parties must apply for a consent court order for a property agreement by completing the Application for Consent Orders.  You do not need to go to court to apply for consent orders.

This financial agreement is only binding if: (1) both partners signed it AND; (2) both partners received independent legal advice about the agreement.   Partners are not allowed to receive advice from the same lawyer.

For further information on property division in the court see “Property and Money”.

De facto couples can make their own financial arrangements, like any other legally married couple in Australia, or they can turn to the courts to receive a court order. In order to turn to the courts, the de facto couple must meet one of the following conditions:

1. The relationship existed for at least two years OR

2. The couple has a child together OR

3. One person made significant financial or nonfinancial contributions to the relationship and would be at a disadvantage if no order was granted OR

4. The relationship was registered

1. How long you’ve been together

2. Your home – how long you’ve been living together and to what extent is it a joint home

3. Is there a sexual relationship

4. Your financial commitment to one another, ie, does one partner support the other?

5. Whether or not there is joint property. If there is, the court will ask how the property was acquired and used

6. The nature of the commitment and if it is mutual

7. Whether or not your relationship was registered (in those territories where registration is possible)

8. If there are children, the court will want to know who cares for them, makes decisions for them and supports them

9. How other people see your relationship

10. How you and your partner behave in public, ie as a couple or leading separate lives

De Facto relationships are defined in Section 4AA of the Family Law Act 1975. A relationship is de facto if:

1. The partners are not legally married to each other and;

2. They are not related by family and;

3. In all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Many couples today are in committed relationships that are not legally recognised as marriages in Australia. Some opposite sex couples choose not to marry for reasons of conscience or religion. In the case of same-sex couples, the law does not (yet) permit marriage. But the law grants these de facto couples virtually all of the same rights – and responsibilities – as legally married couples. These include laws on division of property, maintenance, child custody and child support.

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