A number of changes in family law have been made in recent times allowing same-sex couples to enjoy the same rights as heterosexual couples.
De facto relationships
On 1 March 2009, laws were enacted allowing de facto couples to have the same entitlements as married couples in relation to separation, provided they were eligible to be considered a “de facto relationship” under the legal definition.
The factors the law looks at to determine whether a couple is in a de facto relationship look into such things as the length of the relationship, whether the parties care for any children, any shared financial arrangements between the parties, among other factors.
The law does not require the parties to a de facto relationship to be of different sexes.
Accordingly, if a same-sex relationship ended after 1 March 2009, and it satisfies the legal criteria of a “de facto relationship” which apply to any other de facto couple, the parties to that relationship are eligible to make an application to the Family Court or Federal Circuit Court for orders in relation to parenting or property.
The ordinary principles outlined in the Family Law Act 1975 then apply to determine orders in relation to children or property settlement.
Previously, even if a same-sex couple were married overseas, the Family Law Act 1975 typically regarded such a couple as a de facto couple.
However, following the results of the Australian Marriage Law Postal Survey announced on 15 November 2019, a legislative amendment was made to the Marriage Act 1961 on 9 December 2017, redefining marriage as the union of two people to the exclusion of all others, voluntarily entered into for life – making no reference any longer to sex or gender.
Once this amendment was enacted, same-sex couples married either in Australia or in a valid marriage overseas were recognised as married for the purposes of the Family Law Act 1975.
As divorce only applies to married and not de facto couples, same-sex married couples could access the Australian divorce system from 9 December 2017.
Same-sex couples can apply for a divorce under Australian law as long as they satisfy the usual requirements, including:
- Living separately and apart for at least twelve (12) months before the application for divorce is filed; and
- Having no reasonable likelihood of reconciliation
When calculating whether parties to a same-sex relationship lived separately and apart for at least twelve (12) months, that period includes periods before 9 December 2017, as long as the parties to the relationship were married at the time and did not resume cohabitation for a period of longer than three (3) months.
Binding Financial Agreements
Binding Financial Agreements (“BFA’s”) are open to both de facto and married couples.
Married same-sex couples may have entered into a BFA prior to 9 December 2017 on the basis of being considered in a “de facto relationship”.
However, after 9 December 2017, such a BFA may be treated as an agreement made under the provisions of the Family Law Act 1975 between a married couple.