The ACT will host Australia's first same-sex marriages this weekend, after the High Court reserved, until 12 December, its judgment regarding the Commonwealth’s challenge to the territory’s same-sex marriage laws. Regardless of the High Court’s decision, it is business as usual in so far as the Family Law Act 1975 is concerned.

The hearing between the Commonwealth and Australian Capital Territory (ACT) Governments regarding the validity of the ACT’s Marriage Equality (Same Sex) Act 2013 commenced this week in the High Court of Australia. The hearing before a full bench of the High Court was expected to take two days but concluded on Tuesday (3 December 2013) with judgment reserved until 12 December 2013.

As no injunction was sought by the Commonwealth, those couples who have given notice will have a 5 day window from 7 December 2013 (when the law becomes operational) to 12 December 2013 in which to marry. Should the High Court strike down the legislation, the marriages of those same-sex couples who marry in the ACT during that period will be null and void.

Regardless of the outcome of the High Court challenge, however, all property, parenting and spousal maintenance matters arising between same-sex couples will continue to be determined in accordance with the de facto provisions of the Family Law Act 1975.

The laws provide for de facto couples, when they separate, to obtain property settlements on the principles that apply under the Family Law Act 1975 to married couples. A de facto relationship is a relationship that two people who are not married or related by family have as a couple living together on a ‘genuine domestic basis’. It can exist between 2 people of the opposite sex, or between 2 people of the same sex.

All the circumstances of the relationship will determine whether a couple have a de facto relationship. These include:

  • the duration of their relationship;
  • the nature and extent of their common residence;
  • whether a sexual relationship exists;
  • the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
  • the ownership, use and acquisition of their property;
  • their degree of mutual commitment to a shared life;
  • whether the relationship has been registered, in a State or Territory with laws for the registration of relationships;
  • the care and support of children; and
  • the reputation and public aspects of their relationship.

The laws enable the Family Law Courts to order a division of any property that the couple own, either separately or jointly. Superannuation that each partner has can also be split. Spouse maintenance can also be ordered.

The Family Law Courts can make these orders if satisfied of one of the following:

  • the period (or the total of the periods) of the de facto relationship is at least 2 years;
  • there is a child of the de facto relationship;
  • one of the partners made substantial financial or non-financial contributions to their property or as a homemaker or parent and serious injustice to that partner would result if the order was not made; or
  • the de facto relationship has been registered in a State or Territory with laws for the registration of relationships.