Under the Property (Relationships) Act (NSW), parties to a de facto relationship may be entitled to make a claim for division of the assets of one another if several requirements are established.
The requirements before such a claim can be made include the relationship being of at least two years’ duration (unless there are children of the relationship -“ in the same-sex couple context, it is not known how state civil courts would treat this), the parties having resided in NSW for a substantial portion of the relationship, the claimant living in NSW at the time of the claim, and a de facto relationship having existed.
So what is a de facto relationship? How does a de facto partner differ from a boyfriend or girlfriend? This can be a significant issue because if one party to a separated couple asserts he/she has a claim for property division, the other party may assert a claim cannot be established because they were not in fact a de facto couple.
The Property (Relationships) Act includes same-sex relationships in the broad definition of de facto relationship. However, it also provides that a number of factors must be examined which include the duration of the relationship, the nature and extent of the common residence, whether or not a sexual relationship existed, the degree of financial interdependence, the degree of mutual commitment and mutual support, and how the relationship is acknowledged publicly.
If a same-sex couple has been together for over two years but do not reside together, does this mean it is a boyfriend/boyfriend or girlfriend/girlfriend relationship? Not necessarily. Different couples have different domestic arrangements, but those differences do not necessarily preclude a de facto relationship from having existed. In marriage cases for instance, the fact that a married couple does not live together or may have an unsatisfactory relationship does not preclude a claim for property division.
If one party launched court action claiming property division and the other denied the existence of a de facto relationship, they may need to give some intrusive evidence of various aspects of the relationship. Again, in a case where the couple does not live together, they may nonetheless have considered themselves in a long-term relationship as a couple and have held themselves out as such to friends and society at large. How would a state civil court determine whether this is a de facto relationship? The answer is uncertain but you can be sure it will be seen through the eyes of a judge who is most likely heterosexual and may see life differently from a gay man or lesbian.

© Star Observer 2022 | For the latest in lesbian, gay, bisexual, transgender, queer and intersex (LGBTIQ) news in Australia, be sure to visit starobserver.com.au daily. You can also read our latest magazines or Join us on our Facebook page and Twitter feed.