Australia is now officially the 26th country to legalise same-sex marriage, with the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) coming into effect on 9 December 2017. Overall, the introduction of same-sex marriage will see same-sex couples have greater access to legal protections surrounding both financial and parenting matters.
Since amendments to the Family Law Act in 2008, the Family Court has had the power to alter property interests for same-sex couples who fall into the category of a 'de facto relationship' (per s4AA of the Family Law Act, an unmarried couple living together on a genuine domestic basis). In that respect, same-sex de facto couples have been treated in the same way as heterosexual de facto couples since 2008.
However, commencing property proceedings is slightly more difficult for de-facto couples because they have to meet certain criteria to establish their de-facto relationship (for example, establishing that there was a common residence and financial dependence – see Malcolm Gittoes-Caesar's previous blog). This is in contrast to married couples, where the existence of a valid marriage is, from the perspective of the Court, proof enough that the parties shared joint property interests.
There is a two-year time limit on de facto couples applying to the Court to determine property matters following the parties separating. A married couple has 12 months following a divorce order being issued to commence proceedings with the Court.
The difference in timelines relating to applications to the Court for assistance may also impact same-sex couples who historically separated without seeking the Court's assistance, but never applied for a formal divorce order from the country they were married in. The Court encounters matters similar to this when separated heterosexual couples have waited a significant period of time before filing for divorce, and in turn apply to the Court for a property settlement a number of years following their actual date of separation.
Whilst the Court has not yet been forced to decide how the retroactive recognition of same-sex marriage will impact timelines relating to the commencement of property proceedings, ultimately the Family Court has the ability to determine whether a case should be dealt with by a Judge on a case-by-case basis, assessing whether it is just and equitable for the Court to intervene.
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