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

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.