The Law Handbook 2024

Chapter 4.3: Same-sex and de facto couples and families 277 Victorian legislation Domestic relationships The Statute Law Amendment (Relationships) Act 2001 (Vic) (‘ SLAR Act ’) (and the subsequent Statute Law Further Amendment (Relationships) Act 2001 (Vic) (‘ SLFAR Act ’) changed a range of state Acts to introduce the legal concept of a ‘domestic relationship’. The narrow principal definition of a ‘domestic relationship’ is ‘a person to whom the person is not married but with whom the person is living as a couple in a genuine domestic basis irrespective of gender’. The objects of the SLAR Act and SLFAR Act are: • to recognise the rights and obligations of partners in domestic relationships where there is mutual commitment to an intimate personal relationship and shared life as a couple, irrespective of the gender of each partner; and • to prevent discrimination under legislation specified in the schedules by ensuring that all couples irrespective of gender have the same rights and obligations, while at the same time recognising the importance of a commitment to a long-term relationship and the security of children. Approximately 55 Acts were amended, mainly concerning property, inheritance, stamp duty, compensation schemes, superannuation, health, guardianship, employment, criminal law and consumer law. All amended statutes took effect by July 2002. The amendments introduced the legal concept of a domestic relationship, defined either narrowly or broadly depending on the obligation or benefit listed in the SLAR Act (schs 1–7). Relationships Act 2008 In December 2008, the Relationships Act 2008 (Vic) (‘ Relationships Act ’) came into effect. The goal of this legislation is to align the rights of couples in domestic relationships (i.e. de facto couples – whether same sex or not) with those of heterosexual and married couples. Section 35(10) of the Relationships Act provides a broad definition of ‘domestic relationship’: the relationship between two adult persons who are not married to each other but are a couple where one or each of the persons in the relationship pro- vides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a relationship in which a person provides domestic support and personal care to the other person for a fee or on behalf of another person or organisation (e.g. charity). Under the Relationships Act, people in same-sex relationships or heterosexual domestic relationships have the right to register their relationship with Births, Deaths and Marriages Victoria. The registration process provides legal recognition of the relationship, as well as easier access to certain entitlements without first having to prove the existence of the relationship. Section 4AA of the Family Law Act 1975 (Cth) (‘ FL Act ’) defines the term ‘de facto relationship’ and lists a number of factors that a court may consider when determining if a de facto relationship exists in the circumstances. Notably, section 4AA(5)(a) of the FL Act holds that a de facto relationship can exist between two persons of the same sex. In the case of Hoffman v Braddock [2019] FCCA 144, it was found that a de facto relationship did exist between the two parties even though they were not strictly living together at all times. More emphasis was placed on the nature of the relationship in coming to this decision. That is, it was found that the parties were in a de facto relationship because they had been together for 10 years, there was a clear sexual and romantic component to the relationship, the parties had bought a home together, and had a commitment to a shared life. In the more recent case of Sampson and Sampson [2021] FCCA 1471, Justice Willis had to determine whether or not the parties’ relationship after they separated gradually changed into a de facto relationship. Justice Willis considered the factors listed in section 4AA of the FL Act and found that a de facto relationship did exist between the parties. The key determining factors were the parties’ presentation to the public as a couple, their continuing sexual relationship, shared travel, shared raising of their children, and the pooling of their financial resources to share the load of living as a family.