De facto difference
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.