Defacto and same sex relationships
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What is a defacto relationship?
There is a common misconception that to be considered a “de facto relationship” you must be living together for two years, however that is not always the case and there are other circumstances which need to be taken into account.
Section 4AA of the Family Law Act 1975 defines what is a de facto relationship. It states that a de facto relationship exists where two people who are not legally married, and having regard to all the circumstances of their relationship, have a relationship as a couple living together on a genuine domestic basis.
The circumstances to be taken into account in determining whether a de facto relationship exists include:
- The duration of the relationship;
- The nature and extent of the couple’s common residence;
- Whether a sexual relationship exists;
- The degree of financial interdependence or financial support between the parties;
- The use, ownership or acquisition of a property;
- Whether the relationship is registered;
- The care and support of children; and
- The reputation and public aspects of the relationship.
Just because parties meet the legal definition of a “de facto relationship” that does not necessarily mean that they are automatically entitled to a property settlement. Conversely, just because parties do not meet the legal definition of a “de facto relationship” does not mean that they cannot apply to the Federal Circuit Court for a property settlement in certain circumstances.
De Facto Relationship and Property Settlement
If you meet the legal definition of a “de facto couple” and the parties have each contributed financially or non-financially to the property pool, then there may be an entitlement to a property settlement. The situation may be more complex if you technically meet the legal definition of a “de facto couple” but have otherwise not contributed to property pool. You should get legal advice about your individual circumstances.
Adesso v Payton
A recent decision handed down by the Federal Circuit Court examined the question of whether the Court ought to make property orders after a de facto relationship of less than two years duration. The 2019 decision of Adesso v Payton concerned a 14-month relationship between a pilot and a woman who was unemployed whilst caring for a child from a previous relationship. The applicant sought financial orders in her favour based on her non-financial contributions to the relationship. The respondent opposed the application, arguing that the relationship was not a de facto relationship within the meaning of the Family Law Act.
Short Relationships
In circumstances where parties do not meet the legal definition, but have otherwise contributed to the property pool, section 90SM of the Family Law Act 1975 provides that the Court may make such orders as it considers appropriate in property settlement matters, including altering the interests of the parties.
However, section 90SB of the Family Law Act 1975 provides that a Court may only make property orders in relation to a de facto relationship if:
- The duration of the relation is at least two years; or
- There is a child of the relationship; or
- The applicant made substantial contributions and a failure to make an order would result in serious injustice.
Facts of Adesso v Payton
The couple in Adesso v Payton were living in a heritage-listed property owned by the man’s mother. The man worked nine days per month as a pilot and ran his own business. The couple planned to renovate the property and the woman argued that her contributions to the relationship were non-financial, consisting of a ‘passion for gardening’, doing the maintenance and improvements of the gardens as well as supervising a professional gardener, homemaking, cooking, and project management of the renovations. The woman also claimed she assisted the man with his business.
The applicant argued that the relationship should be treated as a de facto relationship as her contributions were significant and that she would suffer a serious injustice should she not be allowed to argue her entitlement to property orders under section 90SM of the Family Law Act 1975.
The Decision
The Court found that the applicant made contributions but that her contributions could not be described as ‘substantial’ in the sense of being over and above the ordinary. She and her child had received considerable financial support from the respondent, including accommodation, private school fees and holidays. In this context, her efforts could not be view as out of the ordinary.
The Court stated it was not persuaded that the applicant would suffer a serious injustice were she not permitted to pursue a claim for a property settlement given the short duration of the relationship and the fact that her initial contributions were minimal. It found that given the respondent provided all the financial support, a Court would be unlikely to make any substantial property order in favour of the applicant.
Therefore, given the relationship continued for less than two years and there was no child of the relationship, the Court was not persuaded that a de facto relationship had existed. The application was dismissed.
Same Sex Relationships
In December 2017, the Marriage Act 1961 was amended to redefine marriage as ‘the union of two people to the exclusion of all others, voluntarily entered into for life’. From 2004 until 2017, marriage had been restricted to the union between ‘a man and woman’. Same sex couples, whether married in Australia or overseas, are now recognised under the Family Law Act 1975. Overall, the introduction and recognition of same-sex marriage will see same-sex couples have greater access to legal protections surrounding both financial and parenting matters.
Property Matters
Since the 2008 amendment to the Family Law Act, the Court has had the power to alter property interests for de facto relationships. However, people who are in a de facto relationship are only eligible to apply for a property settlement following the breakdown of their relationship if they can prove they meet certain eligibility requirements and were living together on a ‘genuine domestic basis’. The same eligibility requirements apply for all de facto relationships. This is in contrast to married couples, where the existence of a valid marriage is, from the perspective of the Court, is proof enough that the parties shared joint property interests.
There is a two-year time limit on de facto couples applying to the Court to determine property matters following a separation. A married couple has 12 months from the date of the divorce to commence proceedings with the Court.
The difference in timelines relating to applications to the Court may also impact same-sex couples who historically separated without seeking the Court’s assistance, but never applied for a formal divorce from the country that they were married in. Whilst the Court has not yet been forced to decide how the retroactive recognition of same-sex marriage will impact timelines relating to the commencement of property proceedings, the Court has the ability to determine whether a matter should be dealt with on a case-by-case basis, assessing whether it is just and equitable to do so.
Property Matters
Since the 2008 amendment to the Family Law Act, the Court has had the power to alter property interests for de facto relationships. However, people who are in a de facto relationship are only eligible to apply for a property settlement following the breakdown of their relationship if they can prove they meet certain eligibility requirements and were living together on a ‘genuine domestic basis’. The same eligibility requirements apply for all de facto relationships. This is in contrast to married couples, where the existence of a valid marriage is, from the perspective of the Court, is proof enough that the parties shared joint property interests.
There is a two-year time limit on de facto couples applying to the Court to determine property matters following a separation. A married couple has 12 months from the date of the divorce to commence proceedings with the Court.
The difference in timelines relating to applications to the Court may also impact same-sex couples who historically separated without seeking the Court’s assistance, but never applied for a formal divorce from the country that they were married in. Whilst the Court has not yet been forced to decide how the retroactive recognition of same-sex marriage will impact timelines relating to the commencement of property proceedings, the Court has the ability to determine whether a matter should be dealt with on a case-by-case basis, assessing whether it is just and equitable to do so.
Parenting Matters
Under section 60H of the Family Law Act, if a child is conceived by IVF using a sperm donor and the pregnant women’s marital partner consents to that procedure, then the martial partner is, at law, a legal parent of that child (even in the absence of a biological connection). However, if the parties are not married, the non-biological parent would then need to prove that they were in a de-facto relationship at the time of the IVF procedure (as well as consenting to the procedure) to be considered a legal parent of the child.
This meant that, prior to same-sex marriage legislation, same-sex couples who conceived children via IVF did not have the presumption of parentage through marriage that passed to married heterosexual couples (and instead relied on de facto provisions of the Family Law Act). Marriage eliminates this onus entirely as same-sex couples who are married will no longer have to prove that their relationship existed to be considered the child’s parent.
At this stage, the presumption of parentage concerns IVF pregnancies only, and does not pass to children conceived via surrogacy agreements (which are dealt with separately under the legislation of the State that the parties reside in). This means that male same-sex couples do not have the same presumption of parentage for IVF children as same-sex female couples (as there is currently no legislation that severs the parental rights of the woman who gave birth to the child without further involvement of the court).
However, the Family Law Act provides an entitlement for any interested party (including males in same-sex relationships) to apply for parenting orders relating to a child, and the court is able to consider the family dynamics and circumstances of each individual case prior to determining who the child resides with, and which adult figures in the child’s life should hold parental responsibility for the child.