Same Sex Family Lawyers

The right for couples to marry in Australia is no longer constrained by sex or gender. Accordingly, the rules regarding marriage, divorce, and the formalisation of parenting and financial matters in the event of separation do not discriminate based on the gender identity or sexual orientation of the parties.

Separated same-sex couples can apply for a divorce, property settlement, child support assessments, and parenting orders under Australian family law. They may also enter into prenuptial agreements prior to moving in together or getting married or they may enter into a termination agreement if the marriage or relationship ends.

Same-sex marriages that have been solemnised and are valid in a foreign jurisdiction are recognised in Australia, irrespective of when the marriage took place. This means that same-sex couples who were married overseas may automatically be considered legally married in Australia.

As with most things, there are exceptions – for example, where either party at the time of the overseas marriage was a party to a marriage with another person which was at the time, legally recognised in Australia; or where a party to an overseas same-sex marriage subsequently entered a valid marriage in Australia.

If you are unclear about your marital status, you can discuss your situation with one of our same sex family lawyers in Sydney.

Same-Sex De Facto Relationships

Same-sex de facto relationships are also recognised under the Family Law Act. Generally, persons are in a de facto relationship if:

• they are not legally married to each other; and
• they are not related by family; and
• having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

A range of factors will be considered when determining if a couple has been living together on a ‘genuine domestic basis’. In some cases, you may need to prove that you were in a de facto relationship before accessing certain family law remedies and we can assist you with this.

Children’s Matters and Assisted Reproduction

In Australia, a person who gives birth to a child born through Assisted Reproduction Technology (such as IVF) is the mother of that child. The partner (whether de facto or married) of the birth mother who has used Assisted Reproduction Technology to conceive is a legal parent of the child born (provided they consented to the procedure occurring and are recorded on the child’s birth certificate).

A sperm donor who donates to a person who is in a de facto relationship or marriage is not presumed to be the parent of any child born as a result of the donation. Some parents may want the donor to be involved in the child’s life, while others would prefer no involvement. Donor agreements, although not legally binding, are helpful documents to record the intentions of the parents and/or donor about the role of the parents and the relationship, if any, that the donor is to have with the child.

Same-sex parents are deemed to be the children’s parents and enjoy the same responsibilities as a parent if their names are recorded as such on the birth certificates. In the event of separation, their rights and responsibilities are set out in the Family Law Act which focuses on ensuring the best possible outcomes for children. These rules do not discriminate on the basis of gender identity or sexual orientation.

If you need assistance, contact [email protected] for expert legal advice.