1300 635 529
De facto partners can now be compelled to pay maintenance to the other partner after separation under the same provisions that apply to separated married couples.
One difference for a de facto maintenance Order is that it will automatically end if the party receiving maintenance marries. In the case of the receiving party entering into a de facto relationship, the paying party can apply to have the Order set aside.
A de facto relationship is defined as one in which a couple lives together in a genuine ‘domestic situation’. There will be a close personal relationship between two adults whether related to one another or not, one or each of whom gives domestic support and personal care.
A Court will make Orders if it is satisfied that:
The laws relating to property settlement at the end of a de facto (including gay or lesbian de facto relationship – see Same sex couples) have recently changed. For relationships that have broken down since 1 March 2009, the Court now deals with all of the legal aspects of the separation, including any parenting agreement, property settlement and maintenance. As a result, parties to relationships that have broken down after 1 March 2009 may have more extensive entitlements and obligations than they would have had under State law.
The lawyers at Byron Bay Family Law & Mediation Specialists Melbourne understand the difficulties involved and the unique nature of individual relationships. We have extensive experience negotiating property settlements for couples who have a substantial asset pool, such as a major property/share portfolio or a family business. The process of a breakdown in a de facto relationship can be just as complex as divorce. We understand both the emotional and the commercial implications of splitting assets. We are committed to ensuring a fair settlement is achieved as quickly as possible, we aim to reduce the time taken and therefore the cost to you.
In addition to helping couples after a relationship breakdown, we can also provide advice to clients who may be considering entering into a de facto relationship and want to protect their assets and financial independence.
Surrogacy – when another woman carries and gives birth to a child for another person and then gives that child over – started thousands of years ago when infertile women offered their handmaids to childless husbands. Since then, the technology has advanced quite a bit and now includes many variations of the traditional surrogate. These scientific developments – including IVF and the ability to freeze sperm and eggs – have necessitated legal changes throughout the world. Questions abound regarding the ethics of surrogacy, the legal status of the surrogate and the parents and the ability of nontraditional families (same sex couples, singles) to use surrogates to have children.
There are two types of surrogacy. In traditional surrogacy, also known as genetic contracted surrogacy, the egg is from the surrogate and the sperm is donated by the father. This links the fetus genetically to the surrogate. Gestational surrogacy involves both an egg and sperm donation (one or both may come from the intended parents) and involves In Vitro Fertilization (IVF), in which the egg is fertilized in a petri dish, and the embryo is then implanted into the surrogate. The surrogate has no genetic connection to the fetus with gestational surrogacy. This distinction is important for determining who are the legal parents of the child and what citizenship the child obtains.
The laws surrounding surrogacy in Australia are somewhat complex. Commercial surrogacy, where a woman is actually paid to carry the child, is illegal in all states in Australia. Overseas commercial surrogacy – primarily in India, the United States and Thailand is against the law in New South Wales, Queensland and the Australian Capital Territory. Altruistic surrogacy, in which a woman has no financial gain from carrying the child (although reasonable expenses, such as medical costs, travel, work lost, are covered by the parents) is legal in all states in Australia. The Assisted Reproductive Treatment Act 2008 (ART Act) came into force in Victoria in 2010, and opened more doors for surrogacy.
Some Important Laws on Surrogacy in Victoria in the ART Act
Many same-sex couples in Australia are now having children and building families through sperm and egg donation, surrogacy and adoption. In many ways, lesbian couples have a simpler legal situation than gay couples if one of the women is the biological mother of the child. But there are still complications facing them, and even more facing those couples who choose to use an outside surrogate to carry and birth their child.
The Law in Victoria
According to the Assisted Reproductive Treatment Act 2008, which was passed in December 2008 in Victoria and came into operation on 1 January 2010, both the biological mother and her female partner are considered the legal parents of the child. The Act (s. 147) says that if a woman who is in a lesbian relationship or no relationship undergoes assisted reproductive treatment or artificial insemination, the woman’s female partner is “presumed, for all purposes, to be a legal parent of any child born as a result of the pregnancy” so long as she was the biological mother’s partner when she underwent the procedure AND consented to the procedure. This applies whether the child was conceived with the mother’s own ovum or through donated ovum. The Act also states that the sperm donor – whether or not the mother knows him – is presumed NOT to be the father of the child.
Federal Law
Since November 2008, federal law has recognised the rights of both partners in a lesbian relationship, regardless of who the birth mother is, the method used to conceive the child and the identity (known or unknown) of the sperm donor. The only condition required by federal law is that the non-birth mother consented to the procedure and that the couple was in a de facto relationship.
Since the changes in legislation, the birth mother and her partner are automatically listed as the child’s parents on his or her birth certificate. Prior to the reforms, the sperm donor could be listed on the birth certificate as a parent. However, if a child is conceived through sexual intercourse with the donor (and not artificial insemination or another type of procedure), the donor is the child’s legal parent. The law does not permit a third parent to be listed.
If a child was born prior to the reforms, and only the biological mother is listed on the birth certificate, the birth certificate can be amended to include the non-birth mother. To add the non-birth mother, a form must be submitted to the Registry of Births, Deaths and Marriages and both mothers must sign a declaration that the non-birth mother consented to the procedure. If the child was born prior to the reforms and the sperm donor is listed as father, his name will have to be removed and then the non-birth mother’s name added. This requires a County court order.
Simply put, both federal and state law make both members of a lesbian couple the legal parents of the biological child of one of the women. This means that both mothers have all legal obligations, rights and responsibilities to their children according to Australian law, including maintenance, custody and child support.
Throughout the world, same-sex marriage is being legalized. Eleven countries, including South Africa, Argentina, Belgium and Spain, now recognize same-sex marriages. Nine states in the United States have legalized it. Most recently, New Zealand legalized marriage between members of the same gender, a vote that was wrought with so much emotion the parliament literally erupted in song. Some Parliament members in Australia are calling for marriages conducted in New Zealand to be recognised in Australia.
Australia is not quite there yet. In 2009, the first bill for same-sex marriage was brought before the federal parliament in Australia. That bill, and the one brought in February 2010, did not pass. Most recently, in September 2012, two bills permitting same-sex marriage were defeated in both houses of the Parliament. The Prime Minister, Julia Gillard, supported the bills but allowed members of the ALP a conscience vote.
It’s not clear when, but same-sex marriage in Australia is headed toward legalization. Public opinion is strongly in favor. In a recent poll taken by the Essential Report, 54% of Australians said they thought same-sex marriage should be allowed, with only 33% saying that it should not be permitted. Interestingly, 62% of women polled supported it while only 46% of men said same-sex marriage should be legal. Once legal recognition comes, the laws applying to heterosexual marriages will also apply to same-sex marriages. For better or for worse….
Marriage between two members of the same gender is not legally recognised in Australia. All of Australia grants rights to same sex couples in de facto relationships. Some states, like NSW, Tasmania and Victoria have domestic partnership registries. In Queensland, parties can enter into a civil partnership.
In 2004, the Australian government amended The Marriage Act 1961 to define marriage as a union between a man and a woman. Despite this, in 2008 the Australian government enacted reforms which gave same-sex de facto couples the same rights and obligations as all other de facto couples. These include areas of taxation, social security, health, elderly care, employment, veterans’ benefits and child support (several of these should have a link to another page on that particular right or obligation). Many of the same laws apply regarding property division, maintenance and child custody for same-sex couples whose relationships break down. This brings the 33,714 couples who declared they are in same-sex relationships in the 2011 census that much closer to legal marriage.
Some states allow same-sex couples to register their unions officially, as civil partnerships or under another name. In Victoria, couples may register their relationships with the Registrar of Births, Deaths and Marriages. Interstate unions, however, are not recognised in Victoria.
But a de facto relationship is not the same as a marriage. In order to be recognised as a partner in a de facto relationship, a couple must meet certain criteria not required of married couples. For example, de facto couples must prove they live together “as a couple”, which is determined by a list of conditions including the length of the relationship, whether or not a sexual relationship exists, the acquisition, ownership and use of property, and whether others view them as a couple. No such requirements exist for married couples.
The family courts in Australia recognize the limits of an adversarial system, in which sides come to a judge, armed with aggressive lawyers, to let someone else determine their future. Rather than encouraging people – many of whom were married to each other for years, raised children together and made difficult life-changing decisions together – to discuss the issues with each other when there is a problem, it encourages them to do battle against one another, make the other person suffer, and take as much as they can. There is no balance between the carrot and the stick – there is only a stick, no carrot.
Family law in Australia does, however, offer alternatives to the traditional court approach. Many couples, after first trying to resolve their dispute on their own, now turn to mediation. Mediation generally takes place between the husband and wife or de facto partners, sometimes with their lawyers at their sides (if both sides agree) and is led by a trained, neutral mediator. Mediators may be lawyers themselves, but also come from backgrounds in social work and family therapy. The mediator helps the sides define their interests and what is important to them, manages the discussion between the sides and helps them come to a resolution.
The mediator’s responsibility is to assist the sides in resolving the problem in the best way possible for everyone. This means looking at the whole picture – the children, the ability of the sides to continue working together in the best interests of the children, ensuring that everyone can stand on their feet economically – and not just at the individual desires or demands of one particular side. It’s not an easy task for the mediator and it’s even more difficult to bring the sides to this larger understanding. The mediator does not serve as a judge, making a final ruling. The final agreement must come voluntarily from the two parties.
In certain family disputes in Australia, couples, both married and de facto, are required to attend Family Dispute Mediation. Trained practitioners in the field of family disputes, with professional backgrounds in the fields of law, social work and psychology work with a separating couple to help them through the process. These practitioners will advise the couple on best practices for the good of the children. Family Dispute Mediation is required before parents apply for parenting orders from an Australian court. Parents attending this type of mediation receive a certificate which must be submitted to the court before parenting orders will be given. There are exceptions to this requirement, however, such as urgency, domestic abuse or mental illness.
Vanessa Mathews is a family law specialist and mediator and an accredited family dispute resolution practitioner. Byron Bay law also provides the full range of dispute resolution options, including lawyer-led negotiations and arbitration.
Divorce is the legal word for the termination of a marriage. In Australia, there is no need for there to be “fault” in order for the divorce to be permitted. So even if only one partner wants out of the marriage, the court will grant a divorce order. But there is still a legal process involved that generally takes up to a year to complete.
Issues related to Divorce Process in Australia are covered in Part VI of The Family Law Act, 1975 (link to the law). The law says that a divorce order is based on “the ground that the marriage has broken down irretrievably”.
Before one or both partners may file for divorce in Australia, they must be separated for a period of one year and a day. This is in order to show that the ground for divorce – the breakdown of the marriage – really exists. While no fault must be shown, the law considers divorce a serious matter. By requiring this long period of separation, a couple is required to think very carefully about their decision to terminate their marriage. A court may ask for proof of the separation during the hearing (to be discussed further).
It is important that one partner officially notify the other that he or she wishes to separate. This can be done verbally but a written notification is even better and can be used in court in the event that questions arise about the date of separation or whether it happened at all.
One or both partners must fill out a standard Application for Divorce. This form may be found at the Family Law Courts website. It requires a good deal of information, including personal details about each partner, financial information, questions about property, and details about your children (if you have any) and custody arrangement if they are under 18 years of age.
While this application can be completed without a lawyer (other than the affidavit in Part G), it’s useful to consult with a lawyer to be sure that you’ve completed the application properly and accurately.
You must file the Application for Divorce in three copies – an original and two copies, along with a copy of your marriage certificate and any other accompanying documents (see below). This packet can be filed at the nearest family law registry or on-line at www.comcourts.gov.au.
There is a fee for submitting an Application for Divorce. As of January 1, 2013, the fee is $800 but it is also possible to obtain a reduced fee.
Once everything is filed and paid for, you’ll receive a file number and a time and date for your hearing.
If you filed your Application for Divorce together with your spouse, then nobody needs have the application delivered to them.
If you are submitting the Application for Divorce alone, you need to serve your spouse with a copy of the application, the “Marriage, Families and Separation” brochure and any other documents you filed with the court (except the marriage certificate).
The Divorce Service Kit details how these documents are to be served on the other spouse. Consult with a lawyer before taking any legal action to be sure that you understand all of the implications of your actions and that delivery is done correctly.
You are not always required to attend the hearing.
If there are no children under the age of 18, neither you nor your spouse needs to attend the hearing.
If this is a sole application (not joint with your spouse) AND there is a child under 18, you must attend the hearing.
If this is a joint application, regardless of the age of the children, neither of you needs to attend the hearing.
The hearing allows the judge to ask any questions regarding the Application for Divorce Process in Australia. If the judge decides more information, he or she may schedule an additional hearing. If the judge is satisfied with the application, a divorce order is granted at the conclusion of the hearing. The order becomes final only one month later.
Same-sex couples, like all de facto couples, may turn to the courts for orders on division of property, superannuation and maintenance if the relationship breaks down. The rules applying to de facto couples are somewhat different, though, than those applying to legally married couples.
No! Couples can receive these orders from the court only if the court is satisfied that the couple meets one of the following criteria:
Yes! The laws apply to de facto couples who have a geographical connection with New South Wales, Victoria, Queensland, South Australia, Tasmania, the Australian Capital Territory, the Northern Territory, Norfolk Island, Christmas Island or the Cocos (Keeling) Islands. Geographical connection means that at the time the relationship broke down, the couple lived in one of those states or territories.
A court may still give orders on property division, superannuation and maintenance if:
Yes! The Commonwealth laws allowing de facto couples to divide property came into affect only on August 1, 2009 (and in South Australia only on July 1, 2010). Therefore, in those states and territories where they apply, it’s only for couples whose relationship broke down after those dates. If a relationship broke down before August 1, 2009 (or July 1, 2010 in South Australia), the laws of the particular State or Territory apply, unless both parties request in writing that the new laws apply.
One or both parties must apply for these orders within 2 years of the breakdown of the de facto relationship.
Definitely! De facto couples can make their own arrangements regarding their property, including debts, assets, superannuation and spousal maintenance.
Financial agreements are covered under Part VIIIA of the Family Law Act of 1975. These agreements may refer to:
This agreement can be made at any time during the relationship or after it breaks down (but you must apply for the orders within two years of the breakdown – see above) and it can be formalized by the court by applying for a consent order. Once a consent order is made, it has the validity and enforceability of a court order issued by a judge. Both parties must apply for a consent court order for a property agreement by completing the Application for Consent Orders. You do not need to go to court to apply for consent orders.
This financial agreement is only binding if:
For further information on property division in the court see “Property and Money”.
De facto couples can make their own financial arrangements, like any other legally married couple in Australia, or they can turn to the courts to receive a court order. In order to turn to the courts, the de facto couple must meet one of the following conditions:
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© Byron Bay Family Law & Mediation Specialists. All rights reserved.
© Byron Bay Family Law & Mediation Specialists. All rights reserved.
AFFILIATES
Vanessa Mathews is the founder and managing director of Byron Bay Family Law & Mediation Specialists, and has the rare combination of social work qualifications and experience, combined with nearly 20 years’ experience as a lawyer and mediator; it makes her approach to resolving legal relationship issues both sensible and sensitive.
She is a fully accredited family law specialist, mediator, family dispute resolution practitioner and parenting coordinator with a commerce degree – adding a financially astute aspect to her practice.
Vanessa has extensive experience in complex issues that arise from relationship breakdown, and works in partnership with her clients,
who regularly describe her as empathetic
Vanessa is an active member of the family law profession and
a member of the:
Vanessa and Byron Bay Family Law & Mediation Specialists
are regularly recognised as a ‘Leading Victorian Family
Lawyer’, ‘Recommended Family Law Mediator’ and a
‘Leading Victorian Family Law Firm’ by Doyle’s Guide to
the Australian Legal Profession.
Get Started With Vanessa
Vanessa Mathews is the founder and managing director of Byron Bay Family Law & Mediation Specialists, and has the rare combination of social work qualifications and experience, combined with nearly 20 years’ experience as a lawyer and mediator; it makes her approach to resolving legal relationship issues both sensible and sensitive.
She is a fully accredited family law specialist, mediator, family dispute resolution practitioner and parenting coordinator with a commerce degree – adding a financially astute aspect to her practice.
Vanessa has extensive experience in complex issues that arise from relationship breakdown, and works in partnership with her clients,
who regularly describe her as empathetic
Vanessa is an active member of the family law profession and
a member of the:
Vanessa and Byron Bay Family Law & Mediation Specialists
are regularly recognised as a ‘Leading Victorian Family
Lawyer’, ‘Recommended Family Law Mediator’ and a
‘Leading Victorian Family Law Firm’ by Doyle’s Guide to
the Australian Legal Profession.
Get Started With Vanessa
