Same Sex Separation and Divorce

Same Sex Separation and Divorce

By Ezra Sarajinsky

· Read time: 5 minutes

Same sex divorce doesn’t differ from that as straight couples with respect to dividing property and parenting arrangements.

Same sex partners have the same rights and obligations concerning the two primary legal issues separating couples face: dividing property, and parenting arrangements.

Same Sex Marriage

Since December 9, 2017, Australia has legally recognised same-sex marriage. This landmark legislation also extends recognition to international same-sex marriages within the country. The Marriage Act of 1961 (Cth) now defines marriage as a union between two individuals, irrespective of gender, to the exclusion of all others.

For same-sex couples who opt not to marry but seek to formalise their relationship to some extent, some Australian states offer various options for registering their relationship as de facto. Typically, this registration process is conducted through the respective Registry of Births, Deaths, and Marriages in each state.

Same Sex Divorce

Following the revision of the Marriage Act, same-sex couples now have the ability to obtain through the Federal Circuit and Family Court for a divorce order if they have been married and separated for a period of 12 months.

Defacto Relationships

A ‘de facto’ relationship is determined by the Family Courts through the consideration of various factors, including, but not limited to:

  • Living together in a genuine domestic arrangement
  • Sharing a common residence
  • Maintaining a sexual relationship
  • Managing joint finances

If the Family Court is called upon to issue an order for property settlement, they will do so only if the following conditions are met:

  • The de facto relationship endured for a minimum of 2 years
  • There is a child from the relationship
  • Contributions were made to the relationship justifying court intervention to adjust property interests

Any application to the Family Court for property division in a de facto relationship must be filed within 2 years of the separation date. 

Failure to meet this timeline requires obtaining leave (or permission) from the Court to proceed with the application.

Dividing Property following Separation

When a relationship breaks down, whether it’s a marriage or a de facto relationship, the parties involved are encouraged to negotiate and reach a property settlement agreement without court intervention.

However, if they are unable to come to an agreement, they can seek assistance from the Federal Circuit and Family Court to resolve the matter.

The process of property division involves several steps:

  1. Identifying Assets and Liabilities.
  2. Considering each party’s financial and non-financial contributions.
  3. Considering each party’s future requirements, such as income and care responsibilities.
  4. Dividing assets and liabilities equitably based on contributions and future needs.

Property settlements can be finalised through a Binding Financial Agreement, Consent Orders (if the parties reach an agreement) or by court order after a trial if the parties cannot agree.

Same Sex Parenting Arrangements

Same-sex parenting is legally recognised in Australia, offering several avenues for both gay and lesbian couples to become parents, namely:

  • IVF
  • Surrogacy
  • Adoption
  • Fostering 

One common approach involves assisted reproductive technology, which encompasses procedures like in vitro fertilisation or intrauterine insemination.

The Family Law Amendment (De facto Financial Matters and Other Measures) Act 2008 aimed to eradicate discrimination against female same-sex couples pursuing conception through artificial methods. According to this legislation, if a child is conceived artificially while a woman is in a married or de facto relationship with an ‘intended parent’, that individual will be legally acknowledged as the parent, superseding the status of the sperm donor.

For male same-sex couples, a popular legal avenue is altruistic surrogacy, wherein a woman undergoes pregnancy (often utilising assisted reproductive techniques) and carries the child for another couple. While this practice is lawful in Australia for same-sex couples, compensating the surrogate mother, termed commercial surrogacy, is illegal. In New South Wales, however, it is acceptable to cover all medical expenses associated with the surrogate mother’s pregnancy. It’s noteworthy that engaging in commercial surrogacy abroad is prohibited under the Surrogacy Act 2010.

Adoption and foster care is another route for same-sex couples to embark on parenthood. In Australia, both same-sex couples and individuals have the right to adopt. However, whether pursuing domestic or international adoption, strict criteria are in place to safeguard the child’s welfare. 

Parenting Arrangements After Separation

Following separation, co-parenting arrangements will need to be negotiated between the parents. The best interests of the child will always be the starting and end point.

Co-parenting arrangements can be formalised through parenting plans, consent orders, or a final court order. 

International Same-Sex Marriages

The enactment of the 2017 Act promptly also meant that same-sex marriages made abroad were also acknowledged.

In Australia, an overseas marriage can be substantiated by presenting an original or certified copy of the marriage certificate, or a record or entry of marriage issued by the appropriate authority in the relevant country. 

While it’s understandable that same-sex couples married overseas may now desire to wed in Australia, family law prohibits couples who are already married from marrying again. 

Nevertheless, couples can still opt for alternative ceremonies to commemorate their marriage, such as a confirmation of vows or a recommitment ceremony.

Domestic Violence in Same Sex Relationships

Unfortunately domestic violence exists right across all types of relationships, including Queer ones. Domestic violence, whether it is inflicted on a partner or on children, can be addressed in a number of ways, including Restraining Orders (AVOs in NSW, and IVOs in Victoria). 

Summing it up

Australian legislation now doesn’t significantly distinguish between hetero and LGBTQIA+ relationships in terms of marriage, divorce, defacto relationships, parenting arrangements, and adoption.

Having said that, many people seek out the trust and intimacy that comes with an inclusive and empathetic lawyer. 

If you would like to make time to speak with a Movement Legal lawyer, then get in touch today!

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