Guide to same-sex Family Law matters in Australia

Family structures are changing as the legislation around same-sex Family Law evolves and solidifies. In Australia, members of the LGBTIQA+ community can now get married, raise children and separate with many of the same legal protections as heterosexual couples.

However, there are still some key distinctions to consider, and as with any Family Law matter, it’s important to understand the exact legalities in place before taking the next step.

Below, we explain how same-sex Family Law matters are handled in Australia, including marriage, parenting and divorce. Read on to discover your legal rights, responsibilities and options as an LGBTIQA+ partner and/or parent.
 

LGBTIQA+ marriage

Is gay marriage legal in Australia?

Yes. After decades of advocacy, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 came into effect in December, 2017. This amendment gave lesbian, gay, bisexual, transgender and intersex couples across Australia the right to marry, regardless of their sexual orientation or gender.

Marriage is now defined as ‘the union of two people to the exclusion of all others, voluntarily entered into for life’. With this updated definition in mind, the 2021 Census recorded almost 24,000 same-sex marriages in Australia.

These couples are now recognised under the Family Law Act 1975 and can access certain legal protections in regards to parenting and financial issues. Such entitlements extend to same-sex couples who had married overseas prior to the amendment.

Can same-sex couples who married overseas get married again in Australia?

While it’s understandable that same-sex couples who married overseas may wish to marry again in Australia now that it is legal, this is not presently allowed.

However, you can ensure your marriage is legally recognised in Australia by providing:

• An original or certified copy of the marriage certificate; or
• A record or entry of marriage issued by an appropriate authority in the applicable country.

 

LGBTIQA+ parenting

While LGBTIQA+ parents face the same parenting issues as those in heterosexual relationships, additional considerations may complicate matters further. For example, factors such as assisted reproduction, donor agreements and biological parentage must be considered in some same-sex Family Law cases.

Assisted reproduction and surrogacy

With Assisted Reproductive Technology (ART), such as in vitro fertilisation (IVF) or intrauterine insemination, one partner in a same-sex couple can be the biological parent of the child.

In Australia, these procedures are regulated on a state level. For instance, in New South Wales:

• ART procedures are legal for LGBTIQA+ women and surrogates of LGBTIQA+ men;
• Altruistic surrogacy, whereby the surrogate is not paid, is legal;
• Commercial surrogacy, whereby the surrogate is paid, is illegal (this is true in all states).

In 2008, the Family Law Act 1975 was amended to recognise both mothers in a lesbian relationship as the legal parents of a child born through ART.

To secure this status, the non-birth mother must have consented to the procedure and been living with the birth mother as a couple on a genuine domestic basis when it was performed. In these situations, the sperm donor will not be considered a legal parent.

However, the legislation surrounding parentage differs for men in same-sex relationships who choose to have a child via altruistic surrogacy.

In this case, the birth mother will be considered a legal parent if the couple does not:

• Adopt the child; or
• Apply for the transfer of parentage from her to themselves under the Family Law Act 1975. This is possible in all states and territories in Australia apart from the Northern Territory.

If the application is not approved, the couple may apply for parenting orders or file for adoption.

A word on donor agreements

Made between the donor and recipient parent(s), a donor agreement details the expectations of both parties in regards to the conception process, childcare and relationship (if any) between the donor and the child.

While not legally binding, this document provides evidence of agreed intentions to the Federal Circuit and Family Court if the parties ever have a dispute.

At O’Hearn Lawyers, we can help you to draft this important agreement to ensure your rights are recognised and any care arrangements are in the best interest of the child.

Adoption

In Australia, it is legal for same-sex couples to adopt children through a joint parent petition, and for LGBTIQA+ individuals to file a single-parent petition.

As with any other applicant, you must meet firm criteria to protect the child’s best interests. These requirements vary by state. For example, in New South Wales, an applicant has to be:

• Domiciled or residing in NSW;
• Over 21 years old;
• At least 18 years older than the child to be adopted; and
• Fit to meet all parenting responsibilities.

What to do if you are not recognised as the legal parent of a child and cannot or do not wish to adopt

If you have not been recognised as the legal parent of a child, you may be able to take action to obtain certain rights. More specifically, you can apply to the Federal Circuit and Family Court for a parenting order that considers you a “person concerned with the care, welfare or development of the child.”

• This parenting order may detail:
• Who the child lives with;
• How much time the child spends with a person;
• Parental responsibility for the child;
• Communication the child can share with a person;
• Maintenance of the child; and
• Any factor relating to the care, welfare or development of the child.

The key distinction between this parenting order and being recognised as a legal parent is that the order will expire on the child’s 18th birthday.
 

LGBTIQA+ divorce

Another key consideration when it comes to same-sex Family Law is divorce. The rise in same-sex marriages inevitably brings some marital breakdowns with it. Between 2018 and 2021, 473 divorces were granted for same-sex couples in Australia.

Keep reading to discover what the divorce process involves for LGBTIQA+ couples who wish to part ways.

Divorce applications

In Australia, LGBTIQA+ spouses follow the same divorce process as anyone else. As with all marriage breakdowns, same-sex couples who decide to separate should consider the following:

• There is a “no-fault” divorce system in place, which means you will need to demonstrate that the marriage has broken down beyond repair. To do this, you must be separated for at least 12 months before filing for divorce. You may live together during this time, provided you are genuinely separated.
• Couples who have been married for less than two years must attempt to resolve their issues with marriage counselling. The only exception is in cases of domestic violence, whereby the applicant may request to waive this requirement.
• One spouse must be either an Australian citizen or have resided here for at least one year and plan to do so indefinitely.
• You can apply for property settlement or spousal maintenance at any stage in your relationship, up to one year after the divorce takes effect.

Once the Court has reviewed and approved your divorce application, a divorce order will be granted. This will take effect exactly one month and one day after the hearing.

As the circumstances of every relationship are unique, it is important that you seek legal advice from an experienced family lawyer as soon as you decide to go through with a divorce.

At O’Hearn Lawyers, we are to help you through this complex and challenging process, providing you with invaluable guidance throughout. Please contact us today to start your confidential case.

Property settlement

LGBTIQA+ couples share the same property settlement entitlements as heterosexual couples, and may enter into Binding Financial Agreements at any time in their marriage. These legal documents detail how assets are to be divided in the event of relationship breakdown.

• If you are unable to reach common ground and require the Federal Circuit and Family Court to determine your property settlement, they will consider the following factors:
• The joint and several assets and liabilities of both parties;
• The financial and non-financial contributions that each party has made to the family’s assets and welfare;
• The future needs of both parties given their circumstances (including their earning capacity, physical health and childcare responsibilities); and
• Whether an adjustment should be made to ensure the division of property is ‘just and equitable’ given the above factors.

Importantly, many same-sex couples are able to reach a fair resolution outside of court, negotiating financial matters in private. If this is the case, you can finalise your agreed terms with consent orders, which are issued by the Federal Circuit and Family Court and legally binding.

Whatever your situation, you should consult a family lawyer to ensure your rights and best interests are protected.

Child support

Under the Family Law Act 1975, same-sex and heterosexual couples have the same rights when it comes to parenting orders. However, there are some key differences to be aware of as an LGBTIQA+ parent if you are pursuing child support.

Before we explain further, it’s important to understand that in cases where there is no private Binding Child Support Agreement in place between you and your former partner, the Department of Human Services will use a formula to calculate the amount of child support you are entitled to receive or required to pay. This will include factors like incomes and time spent with the child.

Here’s where it gets more complicated.

Under the Child Support (Assessment) Act 1989, a ‘parent’ is only defined as either:

A birth parent of the child under section 60H of the Family Law Act 1975. This is relevant if your child was born using assisted reproduction; or
An adoptive parent of the child, which applies if you have opted for adoption.

Consequently, this Act only considers one ‘parent’ if an LGBTIQA+ couple has chosen the first pathway to parenthood. When a child is born to same-sex partners via surrogacy, their parents may be a birth mother and lesbian co-mother, or birth father and gay co-father.

Unfortunately, the narrow definition of ‘parent’ in the Child Support (Assessment) Act 1989 means that a birth parent cannot seek child support from a co-parent – even if a parenting order is in place.

On the other hand, a co-parent may seek child support from the birth parent if they are considered an ‘eligible carer’. In other words, they must either:

• Be the sole or principal carer of the child on a daily basis;
• Have major or substantial care of the child; or
• Share ongoing daily care of the child equally with another person.

Remember what is most important is that all parenting arrangements be made in your child’s best interests. Your child should be supported to maintain a meaningful and significant relationship with both parents, whilst being protected from any harm.

Of course, every family is unique. That means there is no single way to determine which arrangements will work best after divorce. If you are separating, then we strongly recommend seeking tailored legal advice for your situation as soon as possible.
 

Receive trusted legal support with your same-sex Family Law matter

At O’Hearn Lawyers, we’re here to help you navigate any Family Law matter. From separation to parenting disputes to divorce and property settlements, our goal is to ease your experience of the legal process during this difficult time.

We strive to protect you and your child’s best interests, working with you to reach the best possible resolution outside of court wherever possible. If litigation is required, our legal team will be by your side from start to finish.

Please contact our experienced lawyers in Newcastle and Port Stephens for personalised legal support with your same-sex Family Law matter today.