Dividing Property When You Separate In New South Wales: Legal Advice For Same-Sex Couples

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While same-sex couples cannot yet legally marry in New South Wales, the Family Law Act still offers protection in certain circumstances. The Family Law Act aims to give non-married couples in NSW similar rights to their married counterparts in key legal situations, including property settlement after you split up. Find out how the law protects you when you separate from your partner, and learn more about the steps you need to take in a property settlement case.

Qualifying for de facto relationship

In NSW, you will often see the term 'de facto' in relation to non-married couples. The de facto status has several legal definitions, each of which apply according to certain scenarios, but when it comes to the distribution of property, de facto couples have the same rights as their married counterparts.

The law sets out clear rules that define a de facto relationship. Without these requirements, almost any couple could claim de facto status, so it's important to understand that many same-sex couples will still fail to meet the legal definition.

To apply for de facto status, at least one of the following requirements must apply:

  • Your de facto relationship has to have lasted for at least two years
  • You have a child with your de facto partner
  • You have each contributed to shared property and or finances
  • You registered your relationship under a State law
  • You lived for at least one-third of your relationship in a State other than Western Australia

Crucially, the courts ignore your gender when you apply for de facto status. The rules apply for a man and a woman, two men, or two women. You can also apply for de facto status while one of you is married – or both of you.

How the courts decide if you qualify for de facto status

NSW courts will not always challenge a de facto status application. For example, if you registered your relationship under state law when you first lived together, you're unlikely to face later challenges. Nonetheless, if somebody disputes the matter, the courts will consider various facts.

You may have to prove the length of your relationship, your financial arrangements and details of your assets. You may even have to talk about the way you publicly presented your relationship. For example, the courts sometimes ask for details of shared holidays or family events you both attended.

How to apply for property settlement under the Family Courts

The Family Law Act came into effect on 1 March 2009 and governs any separation that occurred on or after this date. The law in New South Wales applied to same-sex couples from 1 July 2009. If you separated before this date, you can still apply to the family courts under the new law if you both agree to this action, but you'll need written documents from your lawyers.

For property settlement, you must apply to the NSW family courts within two years of the relationship ending. The court will decide how to separate the property fairly, but many factors can influence the outcome. Like any other property settlement, the court will aim to make sure the outcome is fair and reasonable, but the court's decision is final.

Once the court decides how to divide the assets, a court order could force you and your ex-partner to:

  • Sell and divide shared assets, like your family home
  • Transfer all assets to one person
  • Agree for one person to pay the other maintenance
  • Split superannuation funds

In some cases, ex-partners agree a property settlement out of court. You can settle at any time before a family court makes a ruling, but you should always record these decisions in a consent order. A consent order becomes legally binding, which stops your partner changing his or her mind at a later date.

Why same-sex couples can lose out

Same-sex couples can only deal with property settlement in NSW under the state law. You cannot apply to the federal Family Court regime, which has some advantages over the state law. Federal Family Courts have broader powers to make property orders against third parties, such as creditors. These courts also make a broader consideration of your future needs when making property adjustment. If one of you has made a significant non-financial contribution (like decorating or maintaining the property), the federal Family Court tends to place more value on your share of the assets.

If you are in a same-sex relationship, NSW law offers you protection if you split from your partner. To make sure you get the best possible property settlement, talk to a family lawyer.