Your property settlement is worked out in the same manner as a defacto property settlement. If your relationship ended on or after 1 March 2009 and you were living in Queensland, New South Wales, Victoria, Tasmania, the ACT, the Northern Territory, Norfolk Island, Christmas Island or the Cocos Islands the property settlement is worked out in accordance with provisions of the Family Law Act 1975.
A same-sex property settlement will also be worked out in accordance with the provisions of the Family Law Act 1975 if you were living in South Australia and your relationship ended on or after 1 July 2010
Is there a time limit?
If you have not resolved your property settlement, or commenced a court proceeding seeking a property settlement and it is more than two years since your separation you will not be entitled to pursue a property settlement unless you first obtain the permission of the court. Permission from the court to proceed with a property settlement after two years from your separation will not always be granted. You need to have very good reasons to obtain the court’s permission to proceed with a property settlement after the expiry of the time limit.
My relationship has ended am I entitled to a property settlement?
If you were in a same-sex relationship which ended on or after 1 March 2009, whether or not you are entitled to a property settlement depends upon your particular circumstances. If you were in a same-sex relationship for a period of two years, or if you were in a same-sex relationship and there is a child of your relationship, you may be entitled to a property settlement.
You might even have an entitlement to a property settlement if you were in a same-sex relationship for less than two years for example if you have made a substantial financial contribution or non-financial contribution in the relationship and a serious injustice would result if a property settlement was denied, or if your relationship was registered in a State or Territory which allows for such registration
We have agreed on our property settlement, why do we need to record it?
Even if you have reached an agreement with your same-sex spouse it is important to record that agreement in a manner that will be recognised in the future and is enforceable. Without a properly recorded property settlement it is possible that one party may seek to revisit the settlement and seek an alternate (usually greater) property division at a later time.
It is better to invest some time and incur a relatively small expense now than expose yourself to what could be a very expensive and time consuming process in the future. If you have reached an agreement it can be recorded in either a Financial Agreement or a Consent Order.
What will my property settlement entitlement be?
A same-sex property settlement entitlement is worked out in the same manner as a defacto property settlement and has regard to many different matters. For this reason it is important that you consult with an experienced family law solicitor as soon as possible. Matters which affect what your entitlement is include, but are not limited to, the length of your relationship, financial and non-financial contributions and any children and their ages.
Will I have to go to Court?
No. Most cases settle without Court involvement. You will only have to go to Court if you and your same-sex spouse are unable to reach an agreement in relation to property settlement. There are various avenues available to pursue a property settlement without having to commence a court proceeding. Such avenues include negotiation, mediation and collaborative law.
How can I make sure I receive the Child Support that is assessed to be paid?
In the first instance you should contact the Child Support Agency and take advantage of the appropriate actions they have in place for the collection of child support, including arrears of child support. It is important that you contact the Child Support Agency promptly as there may be time limits in relation to which arrears they are able to collect for you.
I do not agree with the Child Support Assessment, what can I do?
You should contact the Child Support Agency and complete the appropriate documentation relevant to the circumstances of your disagreement to the Child Support Assessment.
I do not receive Child Support, do I have to send the kids to see their mum/dad?
Because child support and the time a child spends with a parent are not the same issue you cannot stop sending children to see their parent simply because you have not been receiving the child support you are supposed to receive. If you were to stop sending the children to a parent and a Contravention Application was filed in the court against you the court would form a very poor view of you in relation to this action.
If you are not receiving the child support you are entitled to receive you should contact the Child Support Agency and follow the appropriate channels to ensure you receive that child support and any arrears owing.
I have been paying Child Support for a child who I have found out is not my biological child, what can I do?
In the first instance you should approach the Child Support Agency with a view to having them stop the Child Support Assessment. Sometimes the Child Support Agency will not stop collecting Child Support from you. In that situation it is likely that you will need to commence a court proceeding seeking a stay of the Child Support Assessment and an Order for DNA testing to occur.
Whether or not you will be entitled to a refund of the Child Support which has been paid will depend on the circumstances of your particular matter.