Gay marriage in Australia is getting quite a bit of discussion, from reasoned to radical, compassionate and aggressive, fundamentalist Christian and outraged but mostly uninformed.
I was struck by the level of misconception about the status of gay relationships on a recent holiday. In my holiday mode, my Accredited Specialist Family Lawyer hat gets left behind, swapped for ski helmet or straw hat dependent on the season. And so, on a recent holiday in the company of extremely intelligent witty, urbane and very educated in their fields, folk sharing one of my passions and the holiday hat was firmly in place.
The conversation turned to gay marriage in Australia — a discussion that was not heated but, interesting and mostly well reasoned. I soon realised the conversation was also uninformed. Very uninformed. The conversationalists were very much of the view that “this gay marriage business was all about property entitlements on a break-up” and especially superannuation (nothing wrong with that is there, by the way?). These statements were made with the firm conviction that only ignorance of the subject can bring. Oh dear, off came the holiday hat.
So here’s a rundown of the legalities of gay marriage in Australia. Gay marriage or no gay marriage reform, unlike the situation in overseas jurisdictions where the debate is loudest, in Australia, de facto couples of either gender are recognised as being in a de facto relationship, so long as they meet the jurisdictional rules of cohabitation — locality of relationship, length of relationship, a child to the relationship or significant financial contribution in a short relationship — have the same entitlement to property division on breakdown of relationship, either by negotiated outcome or when they enter the court system. In some overseas jurisdictions, the existence of a de facto relationship is not recognised as giving any entitlements to property division, whether the relationship is straight or gay.
The Family Law Act treats couples who live together on a genuine domestic basis — either same sex couples or opposite sex couples — in other words, de facto couples, just the same as a married couple, when it comes to a property division. Well almost, but more about the important difference for de facto couples later.
In Australia, de facto couples, same sex or not, have the same entitlements to enter into financial agreements to govern property division in the event of a breakdown. They also have the same entitlements to have superannuation splits as part of a property division and an entitlement to seek spousal maintenance where necessary. There are some qualifications around the latter point consistent with the major difference between de facto couples and married couples.
This distinction has an impact in this way. A married couple may separate for several years without divorcing and have an entitlement to ask the Family Court for a property division, either by a consensual agreement registered with the Court or engaged in the Court process, as of right. No leave of the court required.
A married couple may not divorce under 12 months separation but once divorced they then have 12 months to finalise property without the court’s leave, effectively 2 years from date of separation.
A de facto couple have two years from separation, without asking leave of the court. A de facto couple may not enter into consent orders after the two years expiry but must seek the court’s leave.
My holiday hat may stay on a little longer next time I get to wear it.
This article is not intended to contain legal advice. Always seek appropriate legal advice for your particular circumstances.