There is no Australia wide legislation covering de facto relationships in Australia. Some de facto relationships legislation, such as the Property (Relationships) Legislation Amendment Act 1999 NSW ("the Act") embrace same sex relationships as well as heterosexual relationships within the meaning of the term de facto relationship. Section 4 of the Act defines a de facto relationship as a relationship between two adult persons who live together as a couple and who are not married to one another or related by family.
The Act also establishes a new legal relationship called a "domestic relationship"; which not only includes de facto relationships but also close personal relationships between two adult persons, whether or not related by family, who are living together, one or each of whom provides the other with domestic support and personal care without fee or reward.

The law applicable to de facto relationships differ from State to State and Territory, contains quite detailed and difficult qualifying definitions in respect of status and rights and the time limits and circumstances in which applications can be brought before a court to enforce rights as to property and maintenance. Issues with regard to children, such as Residence and Contact are governed Australia wide by the Family Law Act.

Wallbanks recently represented the Applicants in the case Kevin and Jennifer v The Attorney General for the Commonwealth SY8136/99, in which our client's were successful in obtaining a declaration of Australian law to confirm the marriage between a man of transsexual background and his wife to be a legally valid marriage. This is an important decision for all so-called intersex people in that the law of Australia has now been declared to the effect that people who, through no fault or deficiency, experience a natural variation in human formation, are to be accorded the same basic rights as to heterosexual marriage as others and are not to be punished by the denial of such basic human rights for the mere sake of their difference; as would have been the case in Australia had the United Kingdom decision of Corbett been followed as it had been recently in Texas in the United States of America and in the United Kingdom. Transsexualism was found to be within the so-called intersex continuum. The Australian Government has a right of appeal. For further details of this landmark decision and a link to the full text of the Judgement go to Resources and Links..
Given this landmark decision one would expect that it will be found that intersex individuals (including men and women of transsexual background) enter into legally recognised heterosexual and same sex de facto relationships based upon their culturally declared and medically assigned or re-assigned sex. Although the NSW Act does not distinguish between heterosexual and same sex relationships in defining a de facto relationships, it does so in limiting the application of the Act to same sex relationships in existence on or after 28th June, 1999.

There has been considerable variation in the approach of various judges with regard to the application of the Act in NSW to the division of property between de facto couples. Given certain decisions reached in 2001 the trend would appear to be towards a unity of approach to the division of property in de facto relationships and marriage; although important distinctions continue to exist. For example, determining the length of a de facto relationship involves the application of significantly different principles than that involved in determining the length of a marriage. Considerable differences still exist in respect of the property that will be taken into account in such proceedings as between marriage and defacto relationships; especially given recent amendments to the Family Law Act.

It is important to remember that a party to a de facto relationship may not only rely upon his or her rights under de facto relationships legislation but may also be able to rely upon rights pursuant to trust remedies at general law; which may yield a greater share in a property division.

As in our service of our Family Law clients, at Wallbanks we seek to not only provide you with expert advice with regard to your legal rights arising in the circumstances of your de facto or domestic relationship, be that involving property division, maintenance and/or issues relating to children, but we seek to do so in a way that supports you as an individual person in your experience of these issues in your life.

In this way we seek to recognise the sometimes considerable grief and stress of the experience of the ending of a de facto relationship, while helping to put that ending into a realistic life context that permits proper closure with dignity and a new beginning.

 
 
 
Wallbanks - Legal
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