SAME SEX RELATIONSHIPS
At Ramsden Lawyers we hold a number of family lawyers 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.
In all states in Australia marriage is currently illegal for same sex couples. The Marriage Act 1961 (Cth) defines marriage as a union between a man and a woman. However, in Queensland if you are a same sex couple you are able to register your de facto relationship with Queensland Registry of Births, Deaths and Marriages.
Although same sex couples cannot marry in Australia, there are a number of countries which have legalised same sex marriage. It is important to note that Australia does not identify an international same sex marriage.
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, to determine matters as matrimonial couples would.
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.
In Queensland if the child is born through the assistance of one of the procedures above, whether or not the donor is known, the non-birth parent is identified on the birth certificate of the child and is listed as a ‘Parent’. The couple can opt for the donor to not be considered the parent on the child’s birth certificate.
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, it is illegal to pay the surrogate mother.
The last main alternatives for parenting in same sex relationships are adoption and foster caring. In Queensland, de facto couples are allowed to adopt, however provisions specially exclude same sex de facto couples. There is no provision excluding same sex parents from being foster carers of children.
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.
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.