AUSTRALIA Law and Practice Contributed by: Paul Doolan, Melinda Winning, Carly Middleton and Jeff Marhinin, Barkus Doolan Winning
Can Parties to a Same-Sex Marriage or Same-Sex De Facto Relationship Make a Prenuptial Agreement or Postnuptial Agreement? Parties to same-sex relationships, whether of a married nature or a de facto relationship, can enter into BFAs pursuant to Australian law. The same statutory regime applies to questions of whether such agreements are binding, and the same laws apply to the question of whether any such agreement should be set aside. 2.6 Cohabitation Australian law grants recognition to de facto relationships, provided certain preconditions are met, including: • geographical nexus; • length of relationship; and • the existence of a child or children of such a relationship. The law relating to parties to a de facto relation - ship largely mirrors that applicable to married persons, save for these stringent jurisdictional requirements before proceedings can be insti - tuted. Western Australia has its own laws that apply to de facto relationships. For the balance of Aus - tralians, their rights in respect of property settle - ment and/or spousal maintenance arising from the breakdown of the de facto relationship are based in Commonwealth law (ie, the Family Law Act). Property Settlement Rights for De Facto Parties Parties to a de facto relationship, provided it is a qualifying relationship (see above-mentioned jurisdictional criteria), are governed by legisla -
tive provisions that replicate those applicable to married persons. There is no greater award made in favour of a party to married relationship, as distinct from a de facto relationship, by mere virtue of the distinction between the two different styles of relationship. Spousal Maintenance Claims Arising From De Facto Relationships A party to a de facto relationship can bring a claim for de facto spousal maintenance upon the same terms that apply to married persons. There is no greater or lesser right for de facto parties than for married persons in that respect. Binding Financial Agreements and De Facto Relationships The court’s jurisdiction to make orders in relation to property settlement and/or spousal mainte - nance arising from a de facto relationship can be ousted in part or in whole if there is a BFA in place (see 2.5 Prenuptial and Postnuptial Agreements ). 2.7 Enforcement Where an order for financial relief has been made pursuant to the Family Law Act, and a person fails to comply with its terms, a variety of mecha - nisms exist for its enforcement. The ability to successfully enforce is dependent in part on the clarity of the order made and it is obviously easier to enforce a mere monetary order than it is to enforce a non-financial order. Examples of enforcement mechanisms available under the Family Law Act and court rules include the following. • A party may be in contempt of court, depend - ing upon the nature of the breach, if that party
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