Family & Divorce

Same-sex and separated: What does the law say?

Although Australia continues to wait for true marriage equality, you should know that if you’re a de facto same-sex couple similar laws apply to you as those for heterosexual couples in the event of a break-up.

While Australia has its say on marriage equality, you should know that if you’re a de facto same-sex couple similar laws apply to you as those for heterosexual couples in the event of a break-up.

Same-sex de facto couples who separated on or after July 1, 2010, have similar rights, entitlements and obligations as separating married couples under the Family Law Act 1975. These entitlements extend not just to property settlement at the end of a relationship, but also the payment of income from one partner to the other, or “spousal maintenance”.

The Act defines a couple to be living in a de facto relationship if “they have a relationship as a couple living together on a genuine domestic basis”.  The most common definition of a “de facto relationship” is if a couple has a child together or they have been living together for at least 2 years.

The Court, now under section 90SE of the Act, has the power to make orders for the “proper maintenance of one of the parties to the de facto relationship”, more commonly known as “spousal maintenance”, subject to a number of considerations.

When assessing whether to make an order for spousal maintenance the Court must consider factors including:

  1. Whether the paying party will reasonably be able to support the other;
  2. The income, property and financial resources available to each party;
  3. Whether either party would be entitled to a pension, allowance or benefit and;
  4. Whether the other party is unable to support themselves adequately due to the care of a child of the relationship who is not yet 18 years old, due to age or physical or mental incapacity or any other factor that the Court thinks is relevant.

De facto couples, including same-sex couples, are not entitled to continue to receive spousal maintenance if they remarry. If someone enters a new de facto relationship, the financial relationship with their new partner will be relevant when the Court considers whether that party is adequately able to support themselves.

Spousal maintenance can be made in a number of ways including a lump sum payment or by a series of periodic payments. It is generally a short-term or bridging arrangement or until a property settlement agreement is reached. It is not intended to be long-term or indefinite.

As an example, in the 2013 decision of Aitken & Murphy, the Court considered whether Mr Murphy should be ordered to pay spousal maintenance to Mr Aitken. The Court was satisfied Mr Murphy had the capacity to “…pay a periodic or lump sum maintenance” to Mr Aitken. The Court was also satisfied Mr Aitken had a need for maintenance. The Court decided not to order periodic payments but rather an increased percentage of the pool of assets for Mr Aitken’s future maintenance given that his employment prospects were not good, despite only being about 30 years old at the time the orders were made.

In the event of a break-up early advice is crucial to ensure any spousal maintenance concerns are appropriately addressed while your property settlement is finalised, this is particularly due to time limitations and where there is a disparity in access to the assets of the relationship or access to previously-shared income. Advice from a lawyer specialising in family law is important to ensure you are aware of all your options.