An interesting article published on lexology.com takes a look at what will change for Australian same-sex couples should legislation for same-sex marriage be enacted. In particular, what will be different in legal terms when it comes to property settlement and spousal maintenance?
At present, married and de facto couples have the same family law rights under the Family Law Act. A major difference is that while for married couples, simply being married enables them to seek the jurisdiction of the court in determining property settlements and spousal maintenance, a de facto couple needs to prove one of the following to the court: that the relationship lasted at least two years, or that there was a child borne of the relationship, or that the relationship was registered in a particular State or Territory, or ‘that failure to make an order would result in serious injustice due to the significant contributions made by one party’. There are a further 10 or 11 factors which can be relevant to determining if you are indeed a ‘de facto’ couple. The most well known one is of course living together in one home, but this is not the sole factor. Others include whether you merge finances, whether the public thinks of you as a couple (or not); whether you have the reputation of being a couple. (Speak to one of our Canberra family lawyers about this in more detail if you are uncertain about your situation).
There are also certain aspects of timing where there are clear differences for married and de facto couples. A de facto relationship must have ended for the court to make an order for property settlement or spousal maintenance, whereas for married couples it isn’t a requirement for the marriage to have dissolved in order to seek such orders from the court. There are some unusual cases, where parties have obtained spouse maintenance without being separated. Also, for married couples, an application for property settlement or spousal maintenance must be made within a year of a divorce becoming final (which could be 15 years after separation). On the other hand, for de facto couples, such claims can be made within two years of the breakdown of the relationship. There are exceptions of course (speak to one of our Canberra divorce lawyers about these). Note in particular that:
“Whether you are married or in a de facto relationship, if the time in which to file proceedings has passed, special leave from the Court can be granted if the Court is satisfied that hardship would be caused to the party if the leave was not granted.
“Couples who are or were married also have the option to agree to an extension of time in which to file property and/or spousal maintenance proceedings. No such provision exists for de facto couples.”
Apart from these minor differences, the way the courts determine spousal maintenance and how property should be divided between partners is no different whether for married or de facto couples. The courts take into account a number of factors in a similar way, whether for married or de facto couples. For example, the assets and liabilities of the parties are assessed, the contributions of each party during the marriage or relationship (whether financial, non-financial or homemaker), and the future needs of each party are estimated.
Bearing in mind the minor differences outlined above, the rights of de facto and married couples are surprisingly similar, in terms of property and spousal maintenance.
Do you need help with your claim for spousal maintenance or with your property settlement after a relationship breakdown, whether you are married or in a de facto relationship? Please contact one of our friendly Canberra divorce lawyers at Alliance Family Law on (02) 6223 2400 for advice regarding your specific circumstances.