Does your sexual preference affect your rights and entitlements?

28 Sept 2016 


There is still a lot of confusion about the law surrounding same-sex relationships in Australia.  Same-sex marriage is not legal in Australia, notwithstanding same-sex couples are treated the same as married and de facto heterosexual couples in the eyes of the law.  If a same-sex couple meet the criteria set out in the Family Law Act of a de facto couple (which is not gender based in the Act), then they have the same rights and entitlements as a heterosexual couple including entitlements in relation to property settlement if the relationship breaks down, family provisions (in estate disputes), taxation, superannuation, health insurance, social security, aged care and child support, migration, citizenship and veteran’s affairs.  In NSW it is even possible for a same-sex couple to register their relationship, including if that couple has married overseas.

 

So what is a de facto relationship?  There are a number of boxes that can be ticked to achieve a de facto relationship status.  The most common and easiest to achieve are that the couple are:

 

  • Not legally married to each other; and
  • Not related by family; and
  • Living together on a genuine domestic basis, having regard to all of the circumstances of their relationship.

 

If a de facto relationship breaks down, it is possible to seek the assistance of the Family Court (except in WA) to resolve disputes in relation to the division of property and/or in relation to parenting of children of the relationship.  The boxes that need to be ticked to ask for the Court’s assistance are:

 

  • The de facto relationship must have lasted for a minimum period of 2 years; or
  • There is a child of the relationship; or
  • The person applying for the Court’s assistance has made substantial contributions to the relationship, and a failure to make an order would result in a serious injustice to that party; or
  • The relationship was registered.

 

There are some exceptions to the entitlements available to de facto couples who separated before 1 March 2009.

 

So, even though a same-sex couple cannot legally marry, they have the same legal entitlements as a heterosexual couple in the event of a relationship break down.

 

You should seek legal advice if you have any concerns about your rights and obligations if your relationship breaks down regardless of whether it is same-sex or heterosexual. 


If you would like to know more, please contact one of our friendly staff at Bambrick Legal today:


  • Call us on 08 8362 5269
  • Email [email protected]
  • Fill in our enquiry form here 
  • Visit our office at Suite 12, 15 Fullarton Road, Kent Town SA 5067

 

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