De Facto and Same Sex Couples  

From March 2009 on, exactly the same law applies to de facto and same sex couples that separate after that time as applies to married couples! In New South Wales the state law that applied to financial matters for those couples, the Property (Relationships) Act has been replaced by the Commonwealth Family Law Act for those couples.

What constitutes a de facto relationship?

One judge defined it as “the relationship between a man and woman who live together as a man and wife although not married.” Where there is a dispute as to whether a relationship exists, the courts look at a variety of signs. These can include the sexual element, the intermingling of money and property, the sharing of time and activities together, whether there are children and whether they call themselves a couple.

Not all the elements have to be present in any given relationship- today’s society produces a great variety of living arrangements. Before claims about property can arise, a couple had to have been in their relationship for a total of at least two years, or have a child of the relationship. Once either of those requirements is met, property settlements are assessed in exactly the same way as if the couple were married.

With same sex couples, if the existence of a relationship is disputed it might be harder to prove, and statements as to their relationship will be very significant - in New South Wales there is no provision for any sort of registration of same sex relationships. However, untangling a same sex relationship is done using the same process as for a de facto or married couple.

If there are children of a de facto relationship, for some years issues about them have been dealt with in the Family Law courts, so one of the major benefits of the new regime for de factos is that both financial and parenting issues following a separation can be dealt with in the one forum.

Over one third of marriages fail, and there is a lot of evidence that de facto relationships are even less stable. With a substantial risk of failure, what can you do to minimise the risk of future problems?

The law allows for what lawyers call “Binding Financial Agreements”, or BFA’s or more commonly referred to as "pre-nups". These can be made before, during or after a relationship, and if they meet the legal requirements, a court cannot get involved. They can cover who gets what in the event of a separation, what are the financial arrangements during the relationship, and even what is to happen on the death of a party.

Having a BFA in place can avoid a lot of the stresses and disagreements, which can and usually will surround a separation - the answers have be agreed upon in advance. However many people find it hard to discuss with someone they are about to live with - it can sound as though you do not seem confident about the future of your relationship.  Notwithstanding that, in most cases making a BFA at the beginning of a relationship makes sense - it is perhaps an insurance policy for relationships!

If you need advice or help, you need to talk to an expert, someone who can put their knowledge and experience to work for you.

Talk to the Family Law Expert, Barwick Boitano, on 02 9630 0444. 

Having the right advice, the right assistance and the right helper sooner rather than later can make difficult times so much easier.