Adelaide Magistrates Court
Family Court
Murray Bridge Magistrates Court

Defacto and Same Sex Relationships


Same Sex Marriage Bill Introduced

On 20 June, the Same-Sex Marriage Bill 2013 SA was introduced in the South Australian Parliament.

The Bill, once passed, will enable same-sex adults who marry in South Australia to be registered with the Births, Deaths and Marriage Office and receive a marriage certificate.

If the legislation passes, South Australia would become the first Australian state to legalise same-sex marriage


Same-sex relationships

Australian law defines marriage as a union between a man and a woman. Same-sex marriages entered into in other countries are not recognised as legal marriages in Australia.

Some state and territory governments allow people to register their same-sex relationship. You can find out more information from state and territory registries of births, deaths and marriages.


What is a de facto relationship?

A de facto relationship is one between two adults,  whether heterosexual or homosexual, not legally married to each other, not related to each other inside the prohibited degrees and living together on a genuine domestic basis.

All de facto couples are covered by the Family Law Amendment (De Facto Financial Matters and Other Matters) Act 2008 introduced into South Australia 30 June 2010.

This means that property owned by a couple in a defacto relationship will be divided having regard to the future needs of the parties, not just their contributions.  The provisions relating to the considerations applying to property orders and setting aside property orders are substantially the same as those applying to married couples.

The old laws will continue to apply to all relationships which ended prior to the new legislation coming into force.

To qualify for property distribution relief, the couple must have separated on a final basis after the date of commencement of the legislation ie 30 June 2010, or the couple must agree to having their matters determined under the new legislation.

One or both of the couples must be ordinarily resident in South Australia at the time the application is begun and either the relationship must have lasted for at least two years or there is a child of the relationship or the applicant has made substantial contributions to property to an extent sufficient to cause a serious injustice if the case were not permitted to proceed.

Binding Nominations in Superannuation and Insurance

It is extremely important that you arrange for any binding or non binding nominations in relation to your superannuation and insurance interests to be changed.

It is usual to have a partner as the beneficiary of any insurance policy or superannuation benefit.

As separation and divorce have no effect on your superannuation or insurance nominations, it is vital that you change your nominations to ensure that your superannuation does not get paid to your former partner in the event of your death.

Enduring Power of Attorney and Advance Health Directive

It is usual for parties to appoint their partner as an Attorney under an Enduring Power of Attorney and Advance Health Directive.  Separation does not revoke your current Power of Attorney or Advance Health Directive.  It is therefore vital that you also consider updating these documents to ensure that your financial and personal health matters are managed by the person of your choice should you lose capacity to manage these yourself.

Your former partner has real estate in her or his name only

It is important to speak to a solicitor at the earliest possible time to discuss whether it is appropriate to place a caveat with Land Titles Office on any real property held in your former partner’s name only.  This will preserve the property from any kind of dealings eg sale, alterations, further mortgage, etc without your knowledge.  You will be advised of any intentions by your former partner to deal with the property and therefore have the opportunity to protect your entitlements.


Who has a legal right to stay in a home?

This area of law is know as Right of Occupancy. Before you go and change the locks take care.

Can I lock my ex-partner out of the home?

Properties are often owned “jointly” by parties married or de facto partners subject to any express written agreement both parties have a concurrent legal right to occupy the premises.

So can I lock my ex-partner out? The answer is maybe.  You can change the locks but the other person has an equal right to obtain a locksmith and obtain entry to the premises.

Accordingly you should seek the assistance of either their expressed consent (not to re-enter) the property or alternatively seek the assistance of a Court.  The Family Courts will entertain applications by parties who seek the exclusive occupancy of the matrimonial home.  The Courts will take the holistic approach that will examine the financial capacity of one party (or the other) to rent a property elsewhere, the arrangements for the care of the children (i.e. who is the primary caregiver) and how a “moving out” would affect the ability of this primary caregiver to continue in this role.

The Court will also consider violence or other conduct between the parties and their ability to self-regulate their behaviour.  The Court will not consider it to be in the best interests that children be constantly exposed to loud, verbal altercations or arguments even in the absence of physical violence.

The Court may consider the physical layout of the premises to see whether or not it is possible to physically isolate a part of the house to continue occupancy but through a separate entrance with little or no common use areas.


Can my partner lock me out if I am not on title?

In this case the husband or the wife has the house in their name and wish to exclude the other party from the house by changing the locks and seeking to exclude them. This situation is more difficult on the part of the person who is not on title (and is seeking to be excluded).  The person on title has the “legal” right to exclusively occupy as owner of that property.

It may be that the other person has a “equitable right” to that property as well but will require a Court declaration or Court order permitting either exclusive occupancy (to the exclusion of the other) or alternatively occupation or exclusive occupation of that site. The Family Courts do entertain urgent applications in circumstances of crisis and arbitrary and unilateral actions by spouses in these circumstances.


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