A brief summary
Same-sex marriage is legalised in Australia.
Same-sex couples have the same rights as heterosexual married or de facto couples.
Earlier same-sex marriages that were legally performed overseas are now recognised.
You can apply for a Divorce if you have lived separately and apart for a continuous period of at least 12 months.
Same-sex parents can apply for parenting orders.
If consent is proven, then the marital partner is the lawful parent.
De-facto same-sex parents have to prove that they were in a de-facto relationship at conseption.
We advise on parenting matters, surrogacy, adoption or IVF processes.
LGBTIQ+ and Family Law
Same-sex couples now have the same rights as heterosexual married or de facto couples in relation to property settlements and parenting matters.
At Byron Family Law we are strong advocates for the LGBTIQA+ community, and are sensitive to your legal and non-legal needs when navigating the family law process. We understand that same-sex and trans families have discrete experiences that require specialised knowledge, such as parenting matters, surrogacy, adoption or IVF processes.
We focus on providing our legal services in a safe and confidential environment, and advocate for resolutions that are meaningful for you and your particular circumstances. We take a zero tolerance approach to discrimination based on sex or gender during any stage of your family law matter.
Sex or gender no longer affects the right to marry under Australian law, with same-sex marriage legalised under The Marriage Amendment (Definition and Religious Freedoms) Act 2017. The Marriage Act 1961 now redefines marriage as ‘the union of two people to the exclusion of all others, voluntarily entered into for life’. The amendment immediately recognised earlier same-sex marriage that were legally performed overseas, so long as the marriage can be evidenced in Australia through an original or certified copy of your marriage certificate.
Under the Family Law Act 1975 (Cth) there is a no fault divorce system, and parties only have to prove the irretrievable breakdown of the marriage (s 48(1)). Couples who married after the 2017 amendment, or whose overseas marriage is recognised by the change in the legislation, can obtain a divorce under the Act.
If you have separated from your spouse, you cannot apply for a Divorce unless the following can be established:
1. you have lived separately and apart for a continuous period of at least 12 months immediately prior to the application for divorce being filed (s 48(2)); and
2. there is no reasonable likelihood of reconciliation between the parties (s 48(3)); and
3. that proper arrangements have been made for the care, welfare and development of any children of the marriage (s 55A).
Same-sex families are often facilitated through reproductive technology such as IVF or intrauterine insemination. If parties are married and the child is conceived using IVF or a sperm donor during the marriage with consent, the the marital partner is considered the lawful parent of the child. If the parties are in a de-facto relationship, then the non-biological parent would have to prove that they were in a de-facto relationship at the time of conception. The Family Law Act 1975 (Cth) allows the non-biological parent to a same-sex relationship to apply for parenting orders.