On June 1 2007, South Australia's Domestic Partners Property Act (DPPA) came into operation. For the first time it allows for the resolution of property disputes between same-sex couples whose domestic partnership had dissolved.
However, the new law doesn't allow superannuation to be dealt with in the same way as it is under the Family Law Act for married couples, where superannuation can be split by an order of the Family Court, or by a superannuation splitting Agreement. Instead, superannuation is now defined as an asset, which can be made the subject of a property adjusting order.
Further legislative steps need to be taken to ensure same-sex couples can obtain splitting orders or enter into splitting Agreements.
Also, these disputes in SA fall under the jurisdiction of the Supreme Court, District Court or Magistrate's Court. These aren't courts of specialist family law like the Family Court and the Federal Magistrate's Court South Australia is lagging behind in this regard, as it is the only state which has not enacted legislation to refer power to the Commonwealth in respect of domestic partnerships.
Here are some of the most frequently asked questions about the new law:
Are rights the same as under the Family Law Act for married couples?
No, it is more narrowly defined with the focus on past contributions rather than future needs.
How long do parties have to live together?
Three years but it is possible where parties live together and separate on more than one occasion to accumulate the periods of cohabitation. The original legislation also allowed jurisdiction if there was a child of the relationship, but it remains to be seen how the courts will interpret this within the context of same-sex couples.
Do partners have to live in SA for the whole relationship?
No, but at least for a substantial part of the relationship.
What happens if we separate and I move interstate?
One of the parties has to live in the state of South Australia at the date court proceedings are instituted.
Do partners have to go to court for the division of property?
No, it is important for parties to try and reach agreement without involving the court Parties should explore every avenue of alternate dispute resolution, particularly mediation before considering court action.
What property can be divided?
Any real property or personal properly such as motor vehicles, bank accounts, furniture and chattels, jewellery, superannuation and trust interests.
Is it only financial contributions which are taken into account?
No, the court also must consider home-making and parenting contributions.
If partners agree, how do they bring about certainty in their settlement?
The parties can enter into a Domestic Partnership Agreement. This is a written Agreement which sets out.the terms of their settlement. If each party has a Lawyer's Certificate of Independent Advigs. endorsed on the Agreement, then a Gfturt cannot make an order which is inconsistent with the terms of the Agreement. A Certified Domestic Partnership Agreement therefore brings about a final and binding settlement.
In the past there have been newspaper reports of proceedings under the De Facto Relationships Act Will that happen under the DPPA?
No. The Act now provides a restriction on publication of proceedings which did not previously exist under the De Facto Relationships Act.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
