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LGBTQIA+ Relationship Breakdown – Your Rights to Property Settlement

Until 2009, the Family Courts in Australia did not have the authority under the Family Law Act to make Orders for property settlement between people whose same sex relationship had broken down.  Such applications in NSW had to be made to the District Court, and the process was usually quite complicated, and often unfair.

Since 2009 the Family Courts in Australia have had the power to make Orders for property settlement between same sex couples who separated after 1 March 2009 (although there are different starting dates in some states).  Between 2009 and 2017 same sex relationship property settlement cases were dealt with under the Court’s power to make Orders relating to the breakdown of defacto relationships. Following the amendment to the Marriage Act in December 2017, the Family Courts have been able to make Orders for property settlement following the breakdown of a same sex marriage.  From December 2017 the Federal Circuit Court also gained the power to finalise a Divorce following the breakdown of a same sex marriage.
 
Where a same sex couple, whether defacto or married, have separated on a final basis, the process to determine the division of their assets is  the same as any other separated defacto or married couple.  The matters to be considered by a Court to determine a property settlement, in general terms, are:

1.    The current value of the assets and liabilities;
2.    The contributions of a financial, non-financial, homemaking and parenting nature made by each party to the assets now held;
3.    What needs do each party have for the future;
4.    What would be a fair settlement overall, taking into account the above matters.

Where an unmarried same sex couple has not lived together for 2 years, they may not be entitled to property settlement with their former partner, as is the case for all defacto relationships in Australia.  If you have lived together for less than two years, whether you can obtain property settlement Orders from a Family Court will depend on whether you had a child together, you have made a substantial contribution during the relationship and that the failure to have a property settlement would result in a serious injustice. There are also additional criteria to consider about where you lived during your relationship.

If you would like any advice or assistance to deal with the division of your assets following the breakdown of your relationship, please contact our office to make an appointment on 4928 7300. 

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