Same Sex Relationships

Same sex couples are able to enter into financial agreements in similar terms to opposite sex de facto couples, under the provisions of the Family Law Act. Similarly in the absence of a financial agreement, on the breakdown of a same sex de facto relationship, the same legal technical methodology is applied to determine a financial settlement as in marriage cases.

There is no restriction on same sex couples starting their own families, whether it be a lesbian couple accessing in vitro fertilisation treatment, donor insemination at a clinic, or using a home procedure for donor insemination. However, in New South Wales same sex couples cannot adopt a child as a couple, but individual gay and lesbian people can adopt children. Otherwise there is no restriction on gay and lesbian couples becoming foster parents. 

As to surrogacy agreements in NSW, the Assisted Reproductive Technology Act 2007 prohibits commercial surrogacy agreements (section 43) and also provides that a surrogacy agreement is void (section 45). This law also applies to same sex couples.

The family unit can take different forms depending upon the social and cultural background of the parties involved. For instance, within some cultures, including Aboriginal or Torres Strait Island or Maori cultures, a traditional form of adoption exists whereby a new- born child may be surrendered to the care of aunts or uncles or other relatives. Within the gay and lesbian community it is not uncommon for lesbian couples to have children through assisted reproductive technology or gay male couples to have children through informal surrogacy arrangements.  Co-parenting arrangements also exist where, for instance, a lesbian couple may co-parent a child with either a single male, or a gay male couple. How the arrangements work is often sorted out between the parties themselves, however it is recommended that prior to any co-parenting arrangements being entered into, the parties seek independent legal advice and perhaps pursue counselling.

When a same sex couple considers starting a family, it is recommended they seek independent legal advice on the status of each party as legal parent, and how parental responsibility is to be shared.

Currently same sex marriage is unavailable in Australia. It is available in Canada, the Netherlands, Belgium, Spain, South Africa, Argentina and Mexico. It is also available in a few states in the United States of America.

In 2003 the Marriage Act was amended to introduce a definition of the word “marriage”. The definition restricts “marriage” to a union between a man and woman only. In addition, a new provision was added to the Marriage Act which expressly does not recognise overseas same sex marriages. This creates a curious state of affairs for same sex couples resident in Australia who married overseas. If their marriage relationship breaks down they would not be able to obtain a divorce in Australia since the marriage is not recognised in this country in the first place.  It would seem that in such a case they would need to seek a divorce in the country where they were married in the first place, provided that divorce for same sex couples is available in the jurisdiction where they married, and that they otherwise fulfil the jurisdictional of requirements before being able to obtain a divorce in that country.

For assistance with Family Law matters, phone Dominic Wilson, Managing Partner of Craddock Murray Neumann, on (02) 82684000. Our senior Family Lawyer is certified by the Law Society of New South Wales as an Accredited Specialist in Family Law.
Further information
Contact Craddock Murray Neumann Lawyers on (02) 8268 4000 for friendly professional service.
Sole occupation of the family home after separation
Date: Sep 01, 2015

It is not uncommon in family law disputes for one party to seek that he/she remain living in the family home, to the exclusion of the other party, while the parties negotiate property settlement.

Stamp Duty Exemption on a Property Transfer
Date: Jan 26, 2012

Parties may also be entitled to a stamp duty exemption if the Court makes Orders requiring a transfer of property.

Inheritances and Gifts in Family Law, how are they treated?
Date: Nov 01, 2011

Consider this example: John and Jill have been married for 10 years and have recently separated. Around 2 years ago Jill’s father died and Jill received an inheritance of $100,000. These monies were deposited into a joint bank account and have been used by the parties to assist in the purchase of a property. Now that the relationship has broken down what becomes of Jill’s inheritance?

Family Dispute Resolution
Date: Oct 11, 2011

If you are in dispute with your partner regarding the care arrangements for your child you are required, by law to engage in what is called Alternative Dispute Resolution.

Do I need a pre-nup?
Date: Oct 06, 2011

In Australia couples who are considering living together, as a de facto couple (whether same sex or heterosexual) or are considering marriage have the option of entering into an agreement to protect their assets in the event they separate. This agreement can protect not only assets in existence now, but also assets the parties purchase throughout the relationship.

How does a judge assess credibility
Date: Mar 28, 2011

A small minority of family law cases require a decision from the Court, whether it involves parenting or financial issues. Where there is a different version of facts given by each party, one of the tasks of the Judge hearing the case is to make findings of fact. In other words, which version of events does the Judge believe to be the correct version.

Same Sex Divorce
Date: Aug 22, 2010

For those people in a same sex relationship who have married one another in a civilised country where same sex marriage is available, and reside in Australia, what happens if your relationship irretrievably breaks down? Can you apply for a divorce in Australia? The simple answer no.

Surrogacy Laws in Australia
Date: Aug 22, 2010

With Queensland introducing new surrogacy laws in 2010, altruistic surrogacy has become legal throughout Australia. However, a lack of uniformity with regard to individual State’s legislation means that intended parents can become confused. This is compounded by the impact of Federal laws, particularly immigration laws, on overseas surrogacy and has caused many parents to be held up in foreign countries awaiting immigration papers for their child.

Property of the Marriage: What Assets are Available
Date: Nov 15, 2009

Upon the breakdown of a marriage one of the issues that needs to be addressed is a financial settlement. This involves dividing the assets, liabilities and superannuation of the parties whereby each party is allocated their share of the net assets, with the end result that none of the assets and liabilities are held in joint names.

Who is a Parent?
Date: Oct 09, 2009

The Family Law Act prescribes that parents of children have parental responsibility, which is defined to mean all the duties, powers, responsibilities and authorities which, by law, parents have in relation to children.

Same Sex Parenting Paper
Date: Oct 03, 2009

The Mainstreaming of Same Sex Relationships – Becoming Parents” – in this paper Paul Boers examines the options available for same sex couples wishing to start a family, including IVF/donor insemination, co-parenting arrangements and surrogacy; of who is a “legal parent” within each arrangement; and of how parental responsibility may be acquired. This paper was originally written for the College of Law, and has been recently updated after a decision in the Family Court of Australia concerning a surrogacy arrangement in the matter of Re Michael: Surrogacy Arrangement.

Marriage Equality Amendment Bill 2009 Senate Inquiry
Date: Sep 23, 2009

In 1961 the Commonwealth Government enacted the Marriage Act, which set out the various requirements before a marriage in Australia, either religious or secular, is valid. It also dealt with other issues including when marriages are void, and Australia’s obligations under the Hague Convention on Celebration and Recognition of the Validity of Marriages.

Surrogacy – An Alternative To Creating Families
Date: Jun 17, 2009

Surrogacy is an arrangement whereby a couple wishing to have a child (“the intending parents”) commission a woman, whether partnered or otherwise (“the surrogate mother”) , to conceive the child and then surrender the child to the intending parents after birth. The intention of this arrangement is that the intending parents will raise their child as their own.

Same Sex Relationships Bill 2008
Date: Aug 22, 2008

The Federal Government has introduced legislation that aims to remove the discrimination against same-sex couples currently present in Acts governing Commonwealth superannuation schemes.

Same Sex, Same Laws
Date: Aug 22, 2008

The Commonwealth government removed discrimination against same-sex couples in more than 100 pieces of federal legislation in 2008.

Back to Service List