Contact Us

Defacto Relationships

Our people have a wealth of industry and professional experience, and are highly regarded in their fields of expertise.

Defacto & Same Sex Relationships

What is a de facto relationship?

A de facto relationship is defined in Section 4AA of the Family Law Act 1975. The law requires that you and your former partner, who may be of the same or opposite sex, had a relationship as a couple living together on a genuine domestic basis. However, your relationship is not a de facto relationship if you were legally married to one another or if you are related by family.

The laws affect property division, maintenance, financial agreements and the superannuation of people in de facto relationships. The law includes same-sex relationships with the definition of ‘de facto couple’ in federal laws. All de facto couples (separating from 1 March 2009) will have the same rights as married couples under the Family Law Act in relation to the distribution of property. There have also been changes to the Child Support (Assessment) Act which affect how child support applies to same-sex couples.

Can I apply to the Family Court or Federal Magistrate’s Court to have my de facto dispute determined if it’s about my children?

Yes. The Family Court and the Federal Magistrates Court deal with issues related to the children of de facto relationships in the same way as the children of married couples. For more information, see the Children’s Matters section of the website.

Can I apply to the Family Court or Federal Magistrates Court to have my de facto financial dispute determined?

From 1 March 2009, parties to an eligible de facto relationship which has broken down can apply to the Family Court or the Federal Magistrates Court to have financial matters determined in the same way as married couples. Examples of financial matters include the adjustment of property interests or maintenance of a party to the de facto relationship.

Before the Court can determine your financial dispute, you must satisfy the Court of all of the following:

1. You were in a genuine de facto relationship with your former partner which has broken down.

2. You meet one of our four gateway criteria.

3. You have a geographical connection to a participating jurisdiction.

4. Your relationship broke down after 1 March 2009 (or after 1 July 2010 if you have a geographical connection to South Australia only); although you may be able to apply to the Courts if your relationship broke down prior to the date applicable to your state.

You must apply for de facto financial orders within two years of the breakdown of your relationship. After this time you need the Court’s permission to apply.

You should obtain legal advice about whether your circumstances satisfy the criteria before filing an application.

When can I apply?

You must apply to the Family Court in relation to property and maintenance issues within two years of your relationship ending. Applications in relation to children can be made at any time. 

Property

From 1 March 2009 new laws apply to the division of the property of de facto couples, including same-sex couples, when they separate. Under the new laws, separating couples will be able to make an application to the Family Court for a property settlement under the Family Law Act if they are unable to reach an agreement about how their assets are to be divided.

How will the courts decide how our property should be divided?

When deciding how your property will be fairly and justly divided, the Family Court will consider the following factors:

What each of you owned before the relationship. How relevant this is will depend on both the length of the relationship and the contributions each person made to the upkeep and improvement of any assets brought into the relationship.

The net value of your current assets – this includes the value of any property such as houses, shares, boats, caravans or superannuation

Contributions made by each person over the course of the relationship.

For more information regarding property and separation please see the property section of this website.

Maintenance

Can I apply for maintenance?

The new law provides for one party of a separated de facto couple to make an application for the other party to pay maintenance to them for their financial support.

For more information regarding maintenance please refer to the spousal maintenance section of this website.

Children of same sex couples

Under family law legislation, most children born to or adopted by same-sex couples will be recognised as children of both parents. This will include:

  • Children born through assisted/artificial conception to lesbian couples;
  • Children adopted by same-sex couples or by one of the partners with the consent of the other; and
  • Children born under surrogacy arrangements recognised under a state or territory scheme (NSW does not have such a scheme)

Will the new laws mean that same-sex parents can be recognised as the child’s parents?

The new amendments enable same-sex parents to be recognised as legal parents in relation to parenting matters and child support. Parenting matters include where the children will live, with whom they will spend time, with whom they will communicate and who will make major long-term decisions. Decisions are made by considering what parenting arrangement would be in the best interest of the child.

The Family Court has always heard matters in relation to children no matter what the relationship status was between the parents. Before the 2009 amendments same-sex parents could obtain parenting orders if they could demonstrate they were a person concerned with the care, welfare or development of the child. They can now apply to the Court for parenting orders in their own right as a parent.

Recognition of same-sex parents in some other matters, such as consent for medical treatment, fall under state laws. Recent changes to NSW law mean that in most cases, lesbian mothers will be recognised as parents of children born into a relationship through assisted reproduction.

My partner and I have separated: will I have to pay child support? 

From 1 July 2009 child support laws will apply to same-sex parents. This includes cases where the children were born through assisted conception or were adopted.

If your name appears on the child’s birth certificate, if there is a court finding, or if you have signed a statutory declaration that you are a parent, then it is likely that you will be seen as a parent with a child support liability. It will also be possible for a parent to ask the Family Court for a declaration that a child support assessment should be issued for their child, payable by their former same-sex partner.

How do I make an application to the Family Court or Federal Magistrates Court?

You should obtain legal advice about whether your circumstances satisfy the criteria before filing an application.

If you would like us to help you with a defacto or same-sex relationship issued please contact us.