LGBTQIA parents and Australian Family Law

If you are separating or have separated from your same-sex marriage or de facto partner and wish to formalise parenting arrangements, a property settlement, or a Divorce Order, it is important to know that this will proceed in the same way as a heterosexual marriage or de facto relationship. The different pathways for each of these areas are broadly outlined below.

Parenting Matters

When it comes to parenting arrangements for children of a relationship, the same issues that apply to heterosexual relationships apply to same-sex relationships. However, there may also be complicating factors such as biological parentage, donor agreements and rights, and assisted reproduction specific to same-sex relationships.

Donors

In Australia, a sperm donor who donates to a woman who is in a de facto relationship is not presumed to be the father of any child born as a result of the donation.

Whether or not the donor is known to the woman and/or her partner does not create a legal issue, however may create complications on how the relationship between the donor and the child is managed moving forward. Some parents may want the donor to be involved in the child’s life, while others would prefer no involvement.

Donor agreements, although not legally binding, are helpful documents to record the intentions of the parents and/or donor about the role of the parents and the relationship, if any, that the donor is to have with the child.

A donor who has a relationship with a child may have grounds to apply to the Court for parenting Orders in relation to the child. The bests interests of a child will, however, always prevail when a Court makes a decision about parenting arrangements for a child.

Assisted reproduction

In Australia, each state and territory recognises that:

• a woman who gives birth to a child born as a result of Assisted Reproduction Technology (such as IVF) is the mother of that child;
• the same-sex partner of a birth mother who has used Assisted Reproduction Technology to conceive is a legal parent of a child born provided that they consented to the procedure occurring and is recorded on the child’s birth certificate; and
• the male partner of a birth mother who has used Assisted Reproduction Technology to conceive is considered to be the legal parent of a child born, provided that he consented to the procedure.

Child support

The duty to financially maintain a child extends to parents in same-sex relationships who are legally recognised as parents.  In the absence of a private agreement between parents with respect to child support, known as a Binding Child Support Agreement, child support payments are administered by the Department of Human Services. The amount of child support payable is calculated using a formula, which takes into account, amongst other factors, the parents’ respective incomes and the time a child spends with each parent. 

Property Settlements

Under the Family Law Act 1975, same sex couples are entitled to the same property settlement and parenting order processes as married couples and heterosexual de facto couples. For de facto relationships, if you are wishing to make an application to the Court seeking property Orders, you must have been in the relationship with your partner for a minimum of two years. There are however exceptions to this rule, which include if there is a child of the relationship.

For more information about property settlements, please click here.

Divorce Applications

Since the legalisation of same-sex marriage in 2017, many gay, lesbian and other LGBTQI+ couples have legally been able to marry.

In the event of the breakdown of a marriage, you must be separated for a period of 12 months before an Application for Divorce can be filed. In addition, you or your spouse must be an Australian citizen, or live in Australia and regard Australia as your permanent home, or ordinarily live in Australia and have done so for at least 12 months before you may file an Application for Divorce.

Once the Application for Divorce has been heard and determined by the Court, a Divorce Order will be granted, which takes effect one month and one day following the Hearing.

At Coulter Legal, our Family & Relationship lawyers are experienced in providing advice to same-sex clients about their legal rights in relation to all family law issues and invite you to contact us to discuss any questions that you may have.