The short answer is No! Under the Family Law Act the court has the power to deal with property, maintenance and parenting issues for both married couples and also people in de facto relationships. This includes same sex couples.
This is true provided that it is established that a de facto relationship exists. This is the primary difference between separation for married couples and de facto couples. If you are married the certificate of marriage is all you need for the family law system to come into operation when you separate.
For de facto couples, they must meet the definition of a de facto relationship as set out in the Family Law Act. This requires the relationship to meet one or more of the following criteria:
- You have lived with your partner for at least two years; or
- There is a child of the de facto relationship; or
- A party to the de facto relationship has made significant contributions to the property or finances of their partner; or
- The relationship was registered under a prescribed State or Territory law
Sometimes one party to the relationship may dispute that a de facto relationship exists. In these circumstances it may be necessary to prove to the Court that the relationship meets the legal criteria. The Court may consider the following factors in determining if a de facto relationship exists:
- Duration of the relationship;
- Joint ownership of property;
- Joint financial arrangements and bank accounts;
- Whether a sexual relationship exists;
- Whether the parties have children together;
- The living arrangements;
- Whether your de facto relationship is registered (this can be done in Queensland); and
- How you present your relationship in public.
Once it is established that a de facto relationship exists the parties to the relationship have access to the same family law system as married couples. This may include coming to an agreement outside the court system or it may include seeking court orders for matters such as parenting, child support, maintenance and property settlement.
If your de facto relationship comes to an end you need to be aware that there is a two-year time limit from separation during which you can apply to the Court for a property settlement.
Please contact a member of the Wonderley and Hall Family Law team if you have any questions about this article or other family law related matters.