Bowen Buchbinder Vilensky

Archive for August, 2015

The Legal Effect of Recognition of Same Sex Marriage
Wednesday, August 19th, 2015

By Adam Spashett, Senior Associate at Bowen Buchbinder Vilensky Lawyers

19 August 2015

Well it seems that we will be heading to an election on the issue of same sex marriage.

There is presently a very heated debate throughout our community regarding the recognition of same sex unions by allowing those couples to enter into a marriage.

Whatever side of the fence one decides to sit, there are various implications to such recognition: socially, religiously, and legally.  There are many opinions and assumptions being touted throughout the media, both in support of, and against, the concept of same sex marriage.

The question is though, what is the likely legal effect of such recognition upon the breakdown of a relationship?

In Western Australia, the “recognition” of same sex couples for the purposes of Family Law, is by way of recognition of de facto relationships.  The Family Court of Western Australia has the power to deal with married couples under Federal legislation, and de-facto couples (including same-sex couples) under State legislation.

Non-married couples who satisfy certain criteria are referred to as “de facto”, which (literally translated from Latin) means “from fact”.  Essentially, it is a term used to describe the reality of such a union: whilst the parties cannot be legally married, the fact is, they are in a “union”.

There are some particular jurisdictional requirements.  Specifically, in relation to “property adjustment orders” and “[de facto] maintenance orders”, the parties must first be in a “de facto relationship”.  Where this is disputed, the Court must find that there is a de facto relationship before it may make an order.  Before making an order in de facto property cases, the Court must be satisfied:

1) that one or both of the parties to the application were living in Western Australia on the day the application is made; and

2) that:

a) both parties have lived in Western Australia for at least one third of the duration of their de facto relationship; or

b) substantial contributions have been made in Western Australia by the applicant.

Where the existence of a de facto relationship is agreed (or determined by the Court), the Court may make such an order only if satisfied that:

1) there has been a de facto relationship for at least 2 years; or

2) there is a child of the de facto relationship under 18 years and failure to make the order would result in serious injustice to the partner caring or responsible for the child; or

3) substantial contributions have been made, and failure to make the order would result in serious injustice.

The Court also has the power in de facto cases to make various other orders in relation to property matters, such as injunctions, as they have in the case of married parties.  However, in Western Australia, no provision has been made for de facto couples to divide their superannuation entitlements.  Therefore, superannuation is treated as a financial resource, rather than as an asset available for division.

From the Western Australian Family Lawyer’s perspective, the ultimate effect of a legislative change to allow same-sex couples to marry will be limited; same-sex couples who decide to marry can do so.  If they subsequently decide to separate, they will be subject to the Federal legislation.  Alternatively, if same-sex couples decide not to marry (and subsequently decide to separate), they will be subject to the State legislation.

It is a timely reminder that parties to such disputes should seek the advice of a competent Family Lawyer who will provide advice as to any jurisdictional issues. Our Family Law team would be happy to assist with any queries you may have.

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