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Published: 09 May 2019
Author: Emma Muse

Does the law treat same-sex couples differently if they split up?

LGBTIQ+ Families: A legal series by RCT Law

I’m in a same-sex couple/non-conventional but long-term relationship. We have never married, although we were together for a number of years. We are now separated.

Will the court treat me the same as someone who was married?

This is a question commonly asked of our family and relationship lawyers.

In this blog, I will explain how same-sex couples are treated under the Family Law Act 1975, and what the implications are for you and children you may have.

The issues

The short answer to the question posed above is: “yes”.

Fortunately, under the Family Law Act 1975 both de facto and married people have the same rights to bring their matter to Court.

This is regardless of whether the relationship is between a man and a woman, is a same sex relationship or is between two consenting adults who do not identify with any gender norms. But there are several matters to consider of which you should be aware in the event of separation.

Children’s matters

The Court deals with and understands that families come in many different shapes and sizes. Being in a de facto relationship will not be a determining factor in terms of your ability to parent.

Your relationship with your children, whether they are your children biologically, by adoption or by marriage, is judged by a number of other factors, including how much time you’ve spent with the children, the age of the children and how long they’ve known you.

The Court’s primary consideration is what is in the best interests of the children. Parents do not have rights under the Act, but rather parental responsibilities that impose obligations upon parents to safeguard the welfare of their children.

Children have rights to have relationships with parents, but only in circumstances where it is in their best interests. So, if you are able to raise your children in a loving and supportive household, it makes sense that they would have their rights to see you fulfilled, whether or not you were ever married to your former partner.

Property matters

The main issue of contention to be aware of when you separate from your de facto partner is that you only have 2 years from the date of separation to file an Application in Court for a property settlement.

This means that you only have 2 years to go to Court to get assistance should you need it. This is most important if you and your partner are at an impasse, if you disagree about what each of you should walk away with or if your former partner stops communicating with you.

However, if you and your former partner agree about the division of property, you can agree to a property settlement any time within that 2 year period without any issues.

What if I go to court?

If you need to go to court, the court will consider the following factors in determining if your relationship was in fact “de facto”:

  1. The length of your relationship. Under Australian law, you must be in a relationship for at least two years to be considered a de facto relationship, unless you had a child together, registered your relationship or made significant contributions to the relationship.
  2. The nature and common residence during your relationship. This means that the Court will consider if and when you lived together and under what circumstances this came to be.
  3. The degree of financial dependence or interdependence and financial support between you and your former partner. As such, the Court will consider how each of you supported the other.
  4. A mutual commitment to a shared life. This is quite an open factor and can consider a number of instances whereby couples may live in unconventional circumstances but remain committed to one another. This can even include circumstances where one of you is married to another person.
  5. The reputation and public aspects of the relationship. This means that the Court will analyse and consider how you presented yourselves to friends and family and if it was known to others that you were a couple.

As you can see, gender or sexual orientation is no obstacle to bringing a property application to Court and should not impede negotiations between yourself and your former partner.

While there are a number of other factors that come into play, you should not feel intimidated or judged based on your gender or sexual orientation.

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