Looking For Assistance With Same-Sex Family Law on the Sunshine Coast?
In 2017, across Australia, same-sex marriage was legalised when the Australian Parliament passed the Marriage Amendment (Definition and Religious Freedoms) Act 2017. This means that The Family Law Act 1975 recognises same-sex couples, ensuring that same-sex couples and families are protected at law with regard to their financial and parenting matters.
According to the Australian Bureau of Standards, in 2020 in Australia, there were 2,902 same-sex marriages. Same-sex marriages constituted 3.7% of marriages registered. Across all states and territories,61.4% of all same-sex marriages were female same-sex couples and 38.5% were male same-sex couples. The median age for males was 37.2 years, and for females it was 35.3 years.
The Anumis Legal Family Law Team believes that your sexual orientation should not affect your rights. We look forward to advising you about your legal rights and obligations and respectfully assist and support you to pursue your rights.
How Anumis Legal Can Assist You With Your Same-Sex Family Law Matters
With a rise in the number of same-sex marriages, it follows that there will be an increase in same-sex separations and divorces. Under Australia’s no-fault system, to get a divorce, a couple must prove that the marriage has irretrievably broken down.
Before you can apply for a divorce you must:
Before you can apply for a divorce one spouse must:
If you are seeking a divorce and you have been married for less than two years, you must try to reconcile your differences through marriage counselling – except where it is unsafe to do so. For example if there is a history of domestic or family violence.
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While there aren’t a lot of differences regarding family law for same sex couples compared with heterosexual couples, we’ve listed some of the more common areas of same sex family law we receive enquiries about.
Click on the boxes below to learn more.
Importantly, there is no difference in the way in which a property settlement is reached following the breakdown of a same-sex relationship and the process for heterosexual couples. As a general rule, property and assets are divided so that the economically weaker spouse receives more than half – usually between 55-65% of the settlement, depending on the circumstances.
When a de facto couple (a couple who aren’t married but who are living as if married) breaks up, there’s no legal requirement for assets to be split. That said, if a child is involved, the relationship lasted two years or more or significant injustice would result if a division wasn’t authorised by the courts, an application for a legally binding property settlement can be made. Note that the application must be made within two years of the breakup.
In some circumstances, one partner in a same-sex relationship may not meet the legal definition of a parent, despite fulfilling the parenting role whilst the relationship was functioning. This can complicate custody and access arrangements, or leave the parent without maintenance. To minimise the risk of this situation occurring, same-sex couples who are co-parenting a child ideally need to check their legal position as soon as possible.
Note that the law varies from state to state across the country. The information given below pertains to the Sunshine Coast, Queensland.
For male couples, if one partner donates sperm for a surrogate pregnancy, there is no automatic right to parental status for the non-donating partner or a legal requirement for the surrogate to renounce their parental status. A surrogate birth mother may renounce her parental rights, leaving the way clear for the non-donating partner to go down the step-parent adoption route.
For female couples who conceive through IVF, both partners are recognised as co-mothers once the baby is born – there is no need for an adoption process to take place.
If you’re in a same-sex relationship and considering parenthood, or already have children, but you want to ensure both partners in the relationship have parental responsibility, we can help. Our experienced family law practitioners have an outstanding knowledge of the law in this area, as well as a compassionate, supportive approach which our clients value during what is often a difficult time for them.
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Does the Law Differ Between Same-Sex Couples and Heterosexual Couples When it Comes to Divorce?
The Marriage Act 1961 (Cth) defines marriage as ‘the union of two people to the exclusion of all others, voluntarily entered into for life.’ The Family Law Act 1975 (Cth) recognises same sex couples who have married, whether in Australia or overseas. Same sex couples who married in Australia after 2017, or prior to 2017, same sex couples who married overseas, are subject to the provisions of the Family Law Act 1975 (Cth) relating to married couples.
For any same sex couple who wish to get divorced, you must demonstrate that the marriage has broken down, irretrievably. There is a requirement that you have been separated from your former partner for not less than a year and you have no reasonable prospect of reconciliation.
The basis for filing an application for divorce with the court is that you must satisfy the court that:
If you were married before to the recognition of same sex marriage in Australia, you can count the 12-month period of separation as starting before the date that same-sex marriage became legal in Australia, provided you were married at the time and there has not been a reconciliation of more than three months.
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Call Dr John Cronin on 07 5455 6347 or email admin@anumis.com.au for your complimentary consultation with our Noosa Marina Family Lawyers!
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