Recognition of unregistered de facto relationships (opposite sex and same sex)
Summary of areas:
- State Domestic Partner laws where there is a child of the relationship
- Applying for Legal Aid
- Social Security Payments and Benefits
- Registration of the birth of a child to female same-sex parents
- Child Support
- Intervention Orders
- Agreements about property
- Stamp Duty
- Criminal Code
State Domestic Partner laws where there is a child of the relationship
In situations where there would normally be a three year period before the relationship is recognised, if there is a child of the relationship, then this period does not apply and the relationship is recognised as a domestic partnership. See Three Year Time Requirement.
Applying for Legal Aid
When applying for Legal Aid, the financial position of any 'financially associated person' is considered, as well as that of the applicant. A financially associated person will usually include a de facto partner. There is no set period for which the applicant must have been in a relationship with a financially associated person. See When Legal Aid is Available – Means Test.
Social Security Payments and Benefits
The Social Security Act 1991 (Cth) states that whether or not an unregistered de facto relationship exists depends on all the circumstances of the relationship, including the financial aspects of the relationship, the nature of the household, the social aspects of the relationship, any sexual relationship between the people and the nature of the people's committment to each other. A de facto relationship cannot be said to exist between two people, if they are below the age of consent in the State or Territory in which they live, if they are in a prohibited family relationship, or if they are living separately and apart on a permanent or indefinite basis [s 4]. The couple must generally be said to be living separately and apart in both a physical and emotional sense [see Guide to Social Security Law 18.104.22.168].
Registered relationships are automatically recognised.
For the purposes of assessing a person' s entitlement to social security payments, the income of a person's de facto partner is taken into account.
Similarly, entitlements to payments and benefits are extended to partners. Possible payments and benefits include:
- Partner concession card benefits
- Bereavement allowance if a partner dies
- Exemption of the family home from the asset test when one partner enters a nursing home and the other partner continues to reside there.
Children of both opposite sex and same sex couples are covered for the purposes of social security and family assistance.
De facto relationships are recognised under taxation law as being between two people of any sex, who llive together on a genuine domestic basis as a couple. Same sex couples have been treated the same way as opposite sex couples and married couples for tax returns from 2009-2010 onwards. Registered relationships are automatically recognised.
Children have the same rights whether their parents are married or not. They are entitled to be cared for and to be supported. When a parent dies, children are entitled to share in the property if there is no will, or to challenge a will that is unfair. If parents separate, parents can decide together how to care for their children. A family counsellor or mediator can often help reach agreement. If parents cannot agree, the Family Law Courts can make orders about the care of children - see Arrangements for children. Parenting orders for the children of opposite sex and same sex couples are decided in the same way as if the parents were married.
Registration of birth of child to female same-sex parents
Under section 10C of the Family Relationships Act 1975 (SA), the female partner of a woman who has given birth due to assisted insemination or assisted reproductive treatment (see the Assisted Reproductive Treatment Act 1988 (SA)) can be recognised as a co-parent of the child on the child's birth certificate. Recognition of the co-parent is subject to some conditions. A woman is recognised as the co-parent if:
- at the time the child was conceived, the two women were living together in a marriage-like relationship, and
- the child was conceived through a fertilisation procedure under the Assisted Reproductive Treatment Act 1988 (SA) (for example, IVF and artificial insemination carried out by a doctor, but not self-insemination), and
- the partner consented to the fertilisation procedure.
Both women can be registered as co-parents even if they were not living together as domestic partners at the time of the birth, or at the time of registration.
If a birth was previously registered with only the mother as a parent, it is possible to change a child's birth certificate through Births, Deaths and Marriages to to include a female partner as a co-parent, as long as the conditions outlined above apply.
A person caring for a child born outside marriage can claim child support from the other parent in the same manner as for a child of a married relationship. Where the child is in the care of the mother and the father's name is not on the birth certificate, and he does not sign a statutory declaration to formally admit paternity, it will be necessary to first establish paternity in the Family Court.
A separated parent from a same-sex relationship can apply for child support from a co-parent who is recognised as a parent under the Family Law Act 1975 (Cth).
Centrelink may also require parents who are receiving Family Tax Benefit to apply for an assessment of child support payable by the co-parent.
It is suggested that you contact the Child Support Unit at the Legal Services Commission of South Australia (08 8111 5576) if you wish to make an application for child support following the breakdown of a relationship.
De facto or former de facto partners with a relationship of any length of time may apply for an intervention order under the Intervention Orders (Prevention of Abuse) Act 2009 (SA). Abuse by a current or former partner is defined as domestic abuse and a de facto relationship meets the definition of a ‘relationship’ under the Act [s 8(8)].
Agreements about property
It is possible to make a binding financial agreement under part VIIIAB of the Family Law Act 1975 (Cth) in anticipation of entering a de facto relationship or during a de facto relationship or at the end of a relationship. For the agreement to be binding, certain requirements must be followed - in particular, both parties must receive independent legal advice. For the agreement to take effect following the breakdown of the relationship, a separation declaration must be made [s 90UF].
Financial agreements under the Family Law Act 1975 (Cth) can deal with the property and financial resources of the parties, and maintenance of either of the parties.
Making a written agreement clarifying the property owned by each partner and details of who is to keep which items, or how items will be divided, if the relationship ends is a prudent step. Disputes can often be prevented by being clear in advance.
Future disputes can be minimised by not putting property into joint names unless each person contributes equally, and by keeping a record of who pays for items purchased, as well as keeping receipts. Also, avoid making statements that property is 'ours' or 'shared' unless that is your real intention.
It is best to make an agreement before living together, but it can also be done during the relationship or after it has ended.
Spouses and domestic partners are exempt from stamp duty on the:
- transfer of an interest in their shared principal place of residence (for example, one partner may own the house they live in, and they may agree that the other partner also be registered on the title as an owner), or
- the transfer of registration of a motor vehicle between them.
[Stamp Duties Act 1923 s71CB]
Domestic partners are defined for the purposes of stamp duty in the same was as they are defined under the Domestic Partners Property Act 1996 (SA) to include someone who is about to enter into or has been in a registered relationship or someone who is about to enter or has lived in a close personal relationship, without any time requirement.
The Criminal Code 1995 (Cth) adopts the definition of a de facto relationship from the Acts Interpretation Act 1901 (Cth). Under that Act, a de facto relationship is defined broadly and no single factor, including the duration of the relationship, is determinative [s 2F].
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.