Same Sex Relationships
Noosa

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.