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.
Craddock Murray Neumann Lawyers on (02) 8268 4000 for friendly professional service.