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De Facto/Same Sex Relationships
In Queensland a de facto relationship is one between two people, irrespective of gender, who are not legally married but live together on a genuine domestic basis.
A separated de facto spouse wishing to settle property must refer to the Property Law Act 1994 (PLA). However, if there are children of the relationship and a Parenting Order is required, this is covered by the Family Law Act 1974. See Children’s Issues.
Whilst the division of property is currently controlled by State legislation, the States have agreed to hand over this responsibility to the Commonwealth. It is likely that Commonwealth legislation will be drafted in the near future to allow the Family and Federal Magistrates Court to deal with the division of property in de facto matters. This legislation is expected to mirror the Family Law Act. The previous Government was set to exclude same sex relationships, but the current Federal Government is intending to include it. Until this, all matters will continue to be heard in either the District or Supreme Courts.
Prior to considering any property application, it must be established that a de facto relationship existed. Factors the Court will consider include:
- Duration of relationship
- Nature and extent of common residence
- Whether or not a sexual relationship existed
- The degree of financial interdependence and any arrangements for support between the parties
- Ownership, use and acquisition of property
- Procreation of children
- Care and support of children
- Performance of household duties
- Degree of mutual commitment and mutual support
- Reputation and public aspects of the relationship.
To apply for a property application under the PLA, the couple must have been living together for at least two years; have a child under the age of 18 years, or have made significant contributions to the relationship that there would be serious injustice if an order was not made.
The division of property is a three step process:
- identify and value the property of parties
- identify and value respective contributions
- determine if an order is just and equitable
The process is similar to that undertaken in the Family Court. See Property Applications. De facto spouses, however, have no right to spousal maintenance and the application must be made within two years of the relationship ending.
Cohabitation Agreements
Like married couples, de facto spouses may enter into a financial agreement before, during or after the commencement of living together. These are called Cohabitation Agreements.
A Cohabitation Agreement is an agreement (oral or in writing) made by de facto spouses in contemplation of starting their de facto relationship or during cohabitation, dealing with all or some of the de facto partner’s financial matters.
Separation Agreements
This is an agreement (oral or in writing) made by de facto spouses in contemplation of ending their relationship or after the relationship has ended dealing with all or some of the de facto partner’s financial matters.
For either of these agreements to be a Recognised Agreement, they must be in writing and comply with the requirements of the PLA. It is always advisable to seek legal advice if you are contemplating a financial agreement. Agreements should be in writing. Speak to a member of our family law team or submit an enquiry to find out more.
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