3 March 2016 After the Mardi Gras glitter and glow – why not pause for thought on the status of your relationship

By Geovanna Jammo, Senior Associate & Family Law Accredited Specialist

In Brief

"…it's time to stand up and be counted, to turn your passion into purpose. Start something! Build momentum."  Momentum is the theme for the 2016 Sydney Gay and Lesbian Mardi Gras.

As the 2016 Mardi Gras festival draws to a close with the internationally renowned Sydney Gay and Lesbian Mardi Gras Parade, this theme will no doubt continue to generate important political, public and private discussions about the recognition and treatment of lesbian, gay, and transgender relationships and same-sex marriage equality in Australia.

What has become evident from the recent public debate regarding same-sex marriage, is that there is still a lot of confusion about what the law currently says about same-sex relationships in Australia.

While same-sex marriage is yet to be legalised by Australia’s Federal Government, same-sex couples do receive otherwise equal treatment as married and de facto heterosexual couples when it comes to the law.

At Swaab, we thought it timely to draw your attention to the status of your own relationship.  

Let's take a look at the background, and the facts:

Since 1999, there have been gradual progressive changes to the law in Australia regarding the rights of lesbian, gay, bisexual and transgender people generally.  In relation to same sex relationships, same sex couples now enjoy many of the same rights as heterosexual couples. Same sex unions are now recognised in Australia if:

  • the relationship is registered[1]; or
  • if the relationship is a de facto relationship.

Same sex relationships meeting the above definitions receive similar consideration as opposite sex de facto and married couples (except of course the right to marry each other in Australia).   This includes the same entitlements in relation to property settlement if their relationship breaks down, family provision cases (disputed estates), taxation, superannuation, health insurance, social security, aged care and child support, immigration, citizenship and veterans' affairs.

Registering a same-sex relationship:

In NSW, as of 1 July 2010, same sex couples can register their relationship in NSW on the NSW Relationships register, managed by the Registry of Births Deaths and Marriages[2].  If:

  • one person resides in NSW;
  • neither person is married, in a registered relationship, or in a relationship as a couple with any other person; and
  • the parties are not related by family.

Entering into a "registered relationship" provides conclusive proof of the existence of the relationship, thereby gaining all of the legal rights afforded to de facto couples.

What we are yet to see is a recognition of other diverse relationships including transgender relationships where a person has not elected to fully transition from their biological sex.

What about overseas same sex marriages?

Since 12 November 2014, a same-sex couple who have legally married overseas can register their status as married in NSW[3] on the above Register therefore recognising that relationship as married, rather than not married

Family law and same sex de facto relationships:

A de facto relationship can exist between a same sex couple[4], just as with a couple of the opposite sex.  Parties in a relationship are classified as being in a de facto relationship if they:

  • are not legally married to each other;

  • are not related by family; and

  • are living together on a genuine domestic basis, having regard to all the circumstances of their relationship.

De facto couples in Australia who separate after 1 March 2009[5] can seek maintenance and property adjustment orders in the Family Courts (except in Western Australia), therefore having access to similar entitlements available to married couples.  The Family Courts will:

  • assess each party's contributions to the relationship; and

  • assess each party's future needs[6].

Parties to a de facto relationship can also split their superannuation, and enter into financial agreements, either prior to living together, during the relationship or after the breakdown of the relationship. Any application to the Court for property or maintenance orders must be made within 2 years of the date of the breakdown of the relationship.

To seek assistance from the Court one or both of the parties to the relationship must also have been ordinarily resident in Australia during the relationship[7] and:

  • the de facto relationship must have been for at least a total of 2 years; or

  • there is a child of the de facto relationship; or

  • the party applying to the Court has made substantial contributions to the relationship, and a failure to make any order would result in a serious injustice to that party; or
  • the relationship is or was registered under a prescribed law of a State or Territory.

If a de facto couple separated before 1 March 2009, the entitlements available to the former de facto couple are not the same as married couples (with some exceptions).  Similarly, there are exceptions to the 2 year threshold referred to above, but only under very specific circumstances. We recommend you obtain legal advice if this applies to you. 

What does all this mean?
Although Australia does not yet have marriage equality for couples in a same sex union, some states recognise an international marital union. 

Further, there are many legal entitlements to people in same sex de facto or registered relationships which align with those afforded to de facto or married couples of the opposite sex. 

You should seek legal advice if you have any questions about your rights and obligations if you are a party in a same sex relationship.

[1] New South Wales, Australian Capital Territory, Victoria, South Australia, Queensland, and Tasmania only.  Northern Territory and Western Australia recognise same sex de facto unions however do not offer a registration register.
[2] This system is not available at a federal level. Similar registers are available in Australian Capital Territory, Victoria, South Australia, Queensland, and Tasmania only
[3] As of January 2016, Queensland, Australian Capital Territory, Tasmania and Victoria also recognise international same sex marriages under their respective relationship registers.
[4] Since 1999
[5] 1 July 2010 for those living in South Australia
[6] This was not previously available under State and Territory laws.
[7] If a party to a relationship has lived, or does live in Western Australia, but lived outside of the state at any time during the relationship, or owns property outside of the state, it is important to seek legal advice to carefully consider which jurisdiction to use (i.e. Western Australia State Courts or the federal Family Courts.

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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