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The Law and You: Marriage equality law and de-facto relationships

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Families take many forms.

Ten years ago, the Australian Family Law Act changed so all de facto relationships and the children of those relationships are entitled to receive the same under the law as opposite-sex de facto couples and their families. This includes dividing finances and/or finalising parenting arrangements.

The changes also recognised that a de facto relationship can exist under the Family Law Act even if one person in the relationship is legally married to someone else or in another de facto relationship.

If you’re entering into a de facto relationship, it’s important to seek legal advice to determine your rights under the Family Law Act. This is regardless of your gender identity, sex, and/or sexuality, and whether you plan, as a couple, to marry or not marry.  It’s also important to discuss your finances, particularly if children are to be part of your future. The team at Watts McCray can help.

This expert column touches on some key issues to consider.

What rights do I have as a party to a de facto relationship?

The answer depends on your personal circumstances which is why it’s wise to talk to a lawyer about key issues such as parenting, property, spouse and child support. It might be worth considering a pre-nup, known legally as a Financial Agreement, to cover your financial assets in case your relationship breaks down.

Having a clear understanding of each other’s legal rights in a relationship and having steps in place to uphold them can mitigate emotional turmoil and logistical struggles during separation or divorce, especially where children are involved.

With children, it’s important to understand the law concerning who is a parent at law and the rights and obligations that go with being a legal parent. Sometimes your expectations and the reality of the law are not the same.

Parents may need certain agreements in place to help ensure they each have the parental rights they both want. Such agreements also help ensure that the best interests of their children are being met, before and after separation.

Do all couples have the same financial rights when separating under the Family Law Act?

If you’re leaving a de facto relationship, regardless of your gender identity, sex and/or sexuality, you have the right to pursue property and financial settlements provided certain eligibility requirements are met. One such requirement is the need to prove that you and your ex lived together on a genuine domestic basis. Your relationship is not a de facto relationship if you were legally married to one another or if you’re related by family.

Once you meet the de-facto relationship eligibility requirements, the financial and property settlements laws are very similar to those of married couples.

Since marriage equality became law in Australia, all couples, regardless of the gender identity, sex and/or sexuality of those in the marriage or where in the world they were married, were also given the right to divorce in Australia.

Does marriage equality mean separation equality?

Unfortunately, the changed marriage equality law isn’t so straightforward in a daily context for many couples and rainbow families. A study undertaken in 2018 by a Melbourne university found the need for greater separation equality because social attitudes had not kept pace with legal changes. The study found, for example, that parents of rainbow families were still experiencing unwelcoming environments when they went to social service providers and health providers, adding a layer of complexity to their separation.

Once again, seeking sound family law advice is important, especially since the law in this area is still evolving and everyone’s family circumstances are different. For example, a lesbian couple may or may not see a distinction in their roles as parents of their children, but others—including family, friends and service providers—may assume that the biological mother has more power when negotiating custody arrangements. This assumption is not always the case at law. Battling these kinds of social misconceptions can add an extra dimension of fear and stress to people who are already feeling vulnerable.

Until 30 June 2019, Watts McCray Canberra is offering free first consultations for up to 20 minutes, for HerCanberra readers.

This article was prepared by Monica Serci, Solicitor at Watts McCray Lawyers in Canberra.

This is a sponsored editorial. For more information on sponsored editorials, click here

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