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Same Sex Relationships

Same Sex Relationships

At Ramsden Lawyers we hold a number of family lawyers at our Gold Coast and Sydney offices (in particular, Reece Ramsden) who practice in various areas of same sex law for both gay and lesbian relationships. Our family lawyers maintain an up-to-date knowledge of the relevant legislation applicable to lesbian, gay, bisexual, transgender and intersex (‘LGBTI’) individuals.

Marriage

Since 9 December 2017, same sex marriage has been legal. This new law has also allowed international same sex marriages to be recognised in Australia.  The Marriage Act 1961 (Cth) defines marriage as a union between two people, to the exclusion of all others. Prior to 9 December 2017, this definition was only between a man and a woman. If same sex couples do not wish to get married but do wish to formalise their relationship to some degree, each state in Australia have different options to register the relationship as de facto, usually with the Registry of Births, Deaths and Marriages.

Property

Since 2009, the Family Law Act 1975 (Cth) governs how the division of property shall occur plus how various other aspects of property matters are dealt with for same sex couples. Same sex couples have access to the Federal Circuit Court and Family Court of Australia (‘Family Courts’) if they are in a de facto relationship or marriage.

The main aspects include:

Making arrangements for property during a relationship and/or planning for the event of a separation;
Distributing property in the event there is a breakdown of the relationship; and
Spousal maintenance, which is the provision whereby one party to the relationship may need to provide support to the other financially for a certain period.

A ‘de facto’ relationship is determined by the Family Courts by considering a variety of factors, including but not limited to characteristics such as:

  • Living together on a genuine domestic basis;
  • A common residence;
  • Existence of a sexual relationship; and
  • Joint finances.

If the Family Courts are required to make an order for property settlement, they will only do so if:

  • The de facto relationship was for 2 years or more; or
  • There is a child of the relationship; or
  • Contributions have been made to the relationship which would warrant the court intervening and altering the property interests of the parties.

Any application to the Family Courts for property division in a de facto relationship must be made within 2 years of the date of separation. Failure to do so requires a party to be granted leave (or permission) of the court to proceed before they hear any application.

Same Sex Parenting

Same sex parenting is legal in Australia and is possible in a number of ways for both gay and lesbian couples. The most common way is through assisted reproductive technology, by either in vitro fertilisation or intrauterine insemination.

One of the purposes of the Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008 was to remove any discrimination against female same sex couples who wished to have a child / children through artificial conception. If a child is born to a woman in a married or de facto relationship with an ‘intended parent’ at the time of the artificial conception then that person will will be identified as the parent, not the sperm donor.

A common legal method for male same sex couples is an altruistic surrogacy arrangement, which is when a woman falls pregnant (usually by assistance listed above) and gives birth to the child for another couple. Although this is legal in Australia for same sex couples, it is illegal to pay the surrogate mother (often known as a commercial surrogacy). In New South Wales you are permitted to pay for all of the surrogate mothers medical related expenses. It is very important to note that entering into a commercial surrogacy overseas is illegal under the Surrogacy Act 2010.

The last main alternative for parenting in same sex relationships are adoption and foster caring. In Australia, same sex couples and individuals on their own are allowed to adopt. Throughout the adoption process, whether or not it is a domestic or international adoption there are very strict requirements for adoption so as to ensure the child’s best interests are being met. Usually it is a requirement for the individuals wishing to adopt to attend a number of seminars first so as to understand the process and legalities before proceeding.

Domestic Violence

Domestic violence is a prevailing issue, not only in heterosexual relationships, but also LGBTI ones as well. If you are an individual who is in a same sex relationship, our family lawyers are able to assist you in either filing an application for a domestic violence protection order or defending one that you believe was unfairly served on you.

More information

If you require more information or assistance in any of the areas mentioned above, please contact our family law team for a free 45 minute consultation.

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