Same-sex couples and financial disputes under Family Law: A brief history

Same-sex couples and financial disputes under Family Law: A brief history

The passage of same-sex marriage laws represented a landmark moment for equality under the law in Australia.  It has resulted in equal access for both heterosexual and same-sex couples to have their financial matters dealt with, upon the breakdown of their relationship, under the Family Law regime in Australia.

Marriage under the law

In 2004, the Australian Parliament passed the Marriage Amendment Act 2004, which defined marriage as a union between a man and a woman.  Previously, marriage under the Marriage Act had remained undefined.

Thirteen years later in 2017, the definition of marriage under the Marriage Act was amended so as to include all couples regardless of sexual orientation.  The Act was amended by the passage of the Marriage Amendment (Definition and Religious Freedoms) Act, which was introduced as a consequence of the results of the Australian Marriage Law Postal Survey plebiscite (a plebiscite being a non-binding vote by the public on allowing same-sex marriage) – where 61.6% of Australians voted in support of same-sex marriage.

Today, the legal definition of marriage now reads:

marriage means the union of 2 people to the exclusion of all others, voluntarily entered into life.”

Then and now: access to financial remedies under Family Law

Prior to 2009, the marital status of a couple determined whether or not a spouse could make an application for a property adjustment by the Family Courts, being the Family Court of Australia and the Federal Circuit Court of Australia.  Only married couples satisfied the matrimonial cause requirement under the law and de facto relationships were not recognised.  This was the case regardless of sexual orientation.

However, a suite of reforms recognising de facto relationships were passed in 2009.  These reforms included the Family Law Amendment (De Facto Financial Matters and Other Measures) Act, which created the de facto financial cause – a measure that effectively extended the jurisdiction of the Family Law Courts beyond married couples.  A person who was a spouse in an unmarried relationship could now apply to the Courts to have their financial dispute resolved, provided that they could prove that they had been a part of a de facto relationship.

A de facto relationship is defined as a relationship where a couple live together on a genuine domestic basis.  The Court determines this by having regard to a multitude of factors, such as the duration of the relationship (a minimum of 2 years), the extent the couple lived together, the nature of their sexual relationship, and the degree of joint finances and financial dependence.  There is no formula or set of facts that automatically establish the existence of a de facto relationship; the Courts have emphasised that proof of a de facto relationship will always depend on the circumstances of each individual relationship.

Under those same reforms, same-sex de facto couples garnered equal rights.  Therefore, where a same-sex de facto relationship could be proven, the Family Courts were capable of intervening and altering the property interests of the spouses, in the event of a relationship breakdown and provided that it was just and equitable.

Same-sex couples that elect to marry will no longer have to prove the existence of their relationship in order to come within the jurisdiction of the Family Court.

Our Family Law team is able to provide you with comprehensive legal advice in relation to the all legal areas associated with same – sex marriage and de facto relationships. For any queries, please don’t hesitate to contact us on (03) 9670 5000.

This article was written by Family Lawyer, Damien Dao.

DISCLAIMER: We accept no responsibility for any action taken after reading this article. It is intended as a guide only and is not a substitute for the expert legal advice you can get from marshalls+dent+wilmoth and other relevant experts.