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At Watson & Watson our clients come first. Please be assured of our continued dedicated services to all current and new clients.

As we have done in the past, we will continue to offer alternative conferencing methods ie video conferencing, skype or telephone conferences. Reviewing of all documentation provided to us prior to any initial conference will be all inclusive of our set fee. Do not hesitate to contact Shereen Da Gloria on (02) 9221 6011 should you have any concerns.

Same Sex Marriages – Property Division

30/08/2021

Watson & Watson Lawyers have experience in dealing with issues arising out of the breakdown of same sex relationships and same sex marriages. 

On 9 December 2017 the Federal Parliament passed legislation to amend the Marriage Act 1961.  Prior to that date it was not possible for persons of the same sex to marry in Australia.  People of the same sex who were in a relationship were regarded as de facto partners and not a married couple. Following the changes to the Marriage Act people of the same sex can marry and also can divorce if the marriage breaks down.

The laws that previously applied in a division of property between people who were married did not apply to persons in a de facto relationship. The laws that applied were similar but not the same. 

The laws in relation to parenting were the same irrespective of whether there was a marriage or de facto relationship. 

Same Sex Marriage - Property Division 

Watson & Watson have acted on behalf of many in same sex de facto relationships in relation to property settlement after the breakdown of a same sex marriage or de facto relationship.

Background

Recently Watson & Watson Lawyers acted for a husband to a same sex marriage.

The husband and husband married some years after the commencement of their de facto relationship.  They had been in a de facto relationship for 7 years before marrying in a country where same sex marriage was legal before the change of laws in Australia.  The marriage was recognised under Australian law. 

Our client came into the de facto relationship with a mortgage free home in Sydney.  His partner (who became his husband) did not bring any property into the relationship.  Our client was an astute investor and was employed in an executive role and earned a high income.  His husband did not have the same financial expertise and relied on his husband to manage the finances.  As result of our client’s effort and the application of income to payment of the mortgages or both investment properties, they each acquired investment properties in their individual names.  The original property was sold and a more exclusive property purchased and registered in joint names. 

The financial contributions of our client were significantly superior to those of his husband.  He had paid the mortgage on his husband’s investment property.  Additionally, our client had assets in another country which he had had prior to commencement of the de facto relationship and continued to own and manage after the marriage. 

Our client was concerned to ensure that his superior contributions were recognised on a division of property. 

Watson & Watson – Advice and Action

Watson & Watson obtained a full history of the contributions made by our client and separately by the husband and set out a particularised proposal for settlement and sent this to the husband.  The husband obtained legal representation. 

Watson & Watson arranged a Mediation of the property dispute with an experienced registered Family Law Mediator. 

The material prepared by Watson & Watson for the Mediation addressed the contributions and adjustment considerations that would be taken into account by the Family Court had it been asked to hear the property division case. Our client’s contributions were particularised and supported by financial records and documents. Our client had a strong case.

The matter was resolved without the necessity for an application to the Court. 

How The Family Court Would Determine The Matter – Evidence Used in Mediation

When the Court considers the division of property it is a 4 Stage process which is:

  1. To identify and value the “pool” of property available for division between the two parties to the marriage. 
  2. To assess the contributions made by the parties to the marriage, the acquisition, maintenance and improvement of property.  These contributions include direct financial contributions and non-financial contributions.  They also include contributions as a homemaker.
  3. Consideration of whether there should be an adjustment to one or both of the parties to the marriage on the grounds set out in Section 75 (2) of the Family Law Act 1975.  This involves a consideration of a number of factors such as your age, state of health and your current and future capacity for employment. 
  4. To determine whether overall the proposed Orders are just and equitable.

Meditation

The parties were able to agree on a registered Mediator.  Watson & Watson selected an experienced Mediator.  The Mediator issued a Mediation Agreement which was signed by all parties and their legal representatives.  The conduct and outcome of the Mediation are confidential. 

The material before the Mediator prepared by Watson & Watson was extensively particularised and documented.  The material prepared on behalf of the husband was not documented and evidence of his contributions was not extensive.  The Mediation was in this case, a “shuttle” style Mediation where the Mediator moved between the parties who remained in separate rooms throughout the Mediation.  During the course of the Mediation the overwhelming contributions made by our client became evident and the position and assertions of his husband appeared to be weak. 

Outcome and documentation of Final Settlement and Divorce

A comprise was reached but it was a compromise where our client’s superior financial contributions were taken into account and the division of property on a final basis between the husbands was not a 50/50 division but in terms of percentage outcome, favoured our client. 

Watson & Watson documented the property settlement in all respects. The husbands entered into a Binding Financial Agreement prepared by Watson & Watson. The Binding Financial Agreement provided for division of property and excluded the right for either husband to make a future claim for maintenance.

Watson & Watson also prepared a Deed of Release pursuant to the Succession Act NSW 2006 the effect of which is to prevent either husband from making a claim against the others Estate after their death.

On the finalisation of the property settlement, the client instructed Watson & Watson to prepare and conduct a Divorce Application. The Divorce of the two husbands was heard in the Federal Circuit Court of Australia and a Divorce Order was made.

If you are in a same sex relationship or marriage and require assistance in relation to financial/property settlement, divorce or contact issues for children our experienced Senior Family Lawyers can assist you in this process and lessen the mental burden. Please contact Richard Watson Senior Family Law Solicitor or his Personal Assistant Shereen Da Gloria to discuss your matter and seek the appropriate advice.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.

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