The breakdown of any relationship, whether it is a marriage or a de facto relationship, results in a couple having to navigate their way through the challenging separation and/or divorce process under Australia’s Family Law system.
For same sex and LGBTQ+ couples, this can be even more complex, especially when children are involved.
Given that the legalisation of same sex marriage in Australia only took place in recent history (2017), it’s understandable that there may be confusion around the rights and responsibilities of those in a same sex relationship when they end their relationship.
Today, we’re going to discuss the separation and divorce process for same sex couples, including how assets and property are divided and parenting matters are resolved. But first, let’s take a brief look at Australia’s path to marriage equality.
Marriage Equality in Australia
On December 9th, 2017, gay marriage was legalised in Australia – this came after a world-wide movement towards marriage equality occurred in the early 2000s.
The legalisation of same-sex marriage came after many years of the government actively attempting to prevent the recognition of same sex marriage. Between 2004 and 2017, more than 20 bills were unsuccessfully introduced by Parliament members in an attempt to legalise same sex marriage.
Throughout this time, attempts were made by some states and territories to legally recognise same-sex marriage. For example, in 2013 the ACT passed the Marriage Equality Act 2013, however this was struck down by the high court as federal laws regarding marriage overruled any state or territory rules.
Marriage is governed by the federal Marriage Act 1961 in Australia, and up until the amendment of this Act in 2017, the act defined marriage as “the union of a man and a woman”. Interestingly, in one of the federal government’s attempts to prevent the recognition of same sex marriage, the Marriage Act was changed in 2004 to define marriage as being between a man and a woman, where prior to that, the act did not define the institution of marriage.
Same-sex couples did have some recognition and legal protections – as de facto partners. States and territories were able to allow de facto same sex couples to register their relationships and be afforded legal protections as the federal government has no exclusive power over laws for de facto relationships.
While this legal protection was important for same-sex couples, a de facto couple must still prove their relationship exists before being afforded these protections, while heterosexual married couples were automatically afforded legal protections. Supporters of marriage equality argued that fair recognition for LGBTQ+ people’s rights would only be sufficiently represented if they too were able to be married legally.
In 2017 the Turnbull government conducted a postal survey to get the opinion of the Australian public as to whether the law should be changed to allow marriage for same sex couples, which resulted in 61.6% of the returned votes supporting this. This led to a bill to amend section 5 of the Marriage act to define marriage as the union of “two people” which was passed in both the Senate and House of Representatives.
There have now been thousands of same sex marriages registered since the legalisation of gay marriage in 2017. In the first 6 months after the Marriage Act 1961 was amended, there were 3149 same sex marriages recorded.
Separation and Divorce for Same Sex Couples
With gay marriage now legal in Australia, what does this mean for same sex couples who end their relationships?
Prior to 2017, same sex couples, who were able to prove their de facto relationship, had the same legal protections as de facto heterosexual couples. This meant that they could apply for property settlements or maintenance upon the breakdown of their relationship, if:
- They were in a genuine de facto relationship that lasted at least 2 years; or
- There was a child of the relationship; or
- The relationship was registered in a state or territory.
Other factors, such as the failure to make an order may result in serious injustice to the applicant or that the party to the de facto relationship who applies for the order made substantial contributions to the relationship, may be considered too.
Now that same sex marriage is legal, so too is same sex divorce.
How do same sex couples get divorced?
The actual process of divorce in Australia is the same for all couples, regardless of sexuality or gender.
Under Australian family law, in order to be granted a divorce you must be able to prove that you are legally married, you have been separated for at least 12 months, and that there is no hope of reconciliation.
The way a couple chooses to separate will differ from relationship to relationship, and it may involve couples living separately or living in the same home.
An application for divorce can be made by a couple together – this is known as a join application for divorce, or it can be made by only one party to the relationship, which will require a few additional steps – which you can learn more about here.
The divorce system in Australia is a “no fault” divorce system – which means that the people of the relationship do not have to prove that the marriage broke down due to the actions of the other party – which is why it is possible for one person to make a sole application for divorce.
Divorce and everything that comes with it
One of the more difficult aspects of a relationship ending in separation or divorce is not the process of divorce itself, rather the matters of property settlements and parenting plans.
Many people confuse these matters, however, under family law they are separate. A divorce is the legal process that formally ends a marriage. A property settlement is the process that ends the financial relationship of the people who were in the marriage. A parenting plan is an agreement between the parents about the care of their children.
Same Sex Divorce and Property Settlements
Since the Marriage Act was amended, the rules surrounding property settlement and the division of assets is the same for same sex and opposite sex couples.
Prior to the amendment, gay couples had the same rights as heterosexual de facto couples when it came to property settlement entitlements.
A de facto partner could pursue a property settlement if they met one of the following conditions:
- They lived in a de facto relationship for at least 2 years; or
- The couple had a child from the relationship; or
- It would be considered unjust to not recognise a de facto spouse’s financial or non-financial contribution.
There are time limits associated with making a property settlement claim:
- For married couples, a property settlement can be made at any time after a separation, but it must be filed within 12 months after the divorce is finalised.
- For de facto couples, the application for a property settlement must be filed in court within two years of the relationship ending.
How is a property and asset split decided?
The way your property asset pool is split is going to be different to any other couple. This is because every person in a relationship will contribute in different ways, including making financial and non-financial contributions.
While the way the assets are divided will be different, the process to make the final property split usually follows the following four steps:
- All assets owned by both parties to the relationship need to listed – this can include houses, cars, money, real estate, superannuation, investments and more. It will also include assets that were accumulated prior to the relationship and during the relationship. These assets will be valued.
- The contributions of each party to the relationship will need to be evaluated. These contributions will include the income of each person, the assets owned by each party, unpaid work, home making and parenting.
- The future needs of each party will be considered. The needs could be impacted by children and parenting arrangements, as well as the abilities of each party to earn an income, which could be impacted by parenting, health, age, and new relationships.
- The proposed split of property and assets will be evaluated to ensure that it is actually fair.
Other factors that could influence how property and assets are divided include prenuptial agreements and other Binding Financial Agreements – which married and de facto couples, regardless of sexuality can enter into.
Same Sex Separation, Divorce and Parenting Matters
The parents of children under the age of 18 have certain parental responsibilities under Australian family law.
These responsibilities include caring for the child’s daily and long terms needs and making decisions for them.
Generally, when a couple separates, regardless of whether the couple is same sex or not, the law assumes that the parents have equal shared parental responsibility. This means that the parents have equal rights in making decision for the kids, including such decisions as where they will live, where they will go to school, and medical decisions.
While there is a presumption of the responsibility as being equal, if it is not in the child’s best interest for this to be the case, then the responsibility may lie with one parent only.
Equal shared parental responsibility doesn’t mean that the amount of time each parent spends with a child will be equal, rather the aim is to have each parent be able to play an active role in determining their child’s future.
A parenting plan or consent order can be a way for parents to make arrangements regarding the living arrangements, financial support and various other matters regarding their children.
Same Sex Couples and Legal Parentage
One of the most complicated factors of same sex divorce and parenting surrounds the legal parentage of a child.
The way in which a family can be created has evolved significantly, with adoption, surrogacy, sperm donors and artificial insemination all being options in addition to the traditional nuclear mother, father, biological family/parenting model.
Whether a person is a biological parent may not have any impact on their parenting abilities or their day-to-day life, however, when couples separate or divorce, it’s important to have the rights of each person understood and legal parentage established where possible.
The Family Law Act 1975 doesn’t actually define a parent other than to define that an adoptive parent is considered a parent for the purpose of the Act. To further complicate matters, the legal rights of families may differ by state and territory and be dependent on how the family was created.
For example, in New South Wales, same sex couples (regardless of gender) are able to have children by surrogacy or assisted reproduction technology. When a child is born via a surrogacy arrangement in Australia, the parentage of a child can be transferred from the surrogate to the eventual parents according to the Family Law Act. But if the surrogacy arrangement is an overseas one, then this does not apply. Instead, you will need to apply to the court to be able to transfer the parentage.
In Western Australia, only opposite sex couples and single women are eligible to enter into a surrogacy agreement in Western Australia. At the time of writing, an announcement had been made in May 2022 that the Western Australia Surrogacy Laws will be undergoing a reform, with the right of who can enter into a surrogacy agreement being extended to include anyone with a medical or social need to pursue surrogacy to be able to do so – including gay couples and single men.
If you are not considered to be the legal parent of a child, then you will need to apply to the court for a parenting order. Parenting orders are usually made when the applicant is considered to be a “person concerned with the care, welfare and development of a child”. A parenting order may be in place until a child turns 18.
Even if you are not separating or divorcing from your partner, if you’re in a same sex relationship with children, working with a family lawyer to help you establish legal parentage or apply for a parenting order may be in your best interests.
A family lawyer who is experienced in surrogacy, adoption, reproductive technology and parenting matters can help you to explore your options and understand your rights and responsibilities, so you can safeguard your right to look after your children.
We Can Help You
If you’re in a same sex relationship and you’re involved in a family law matter, like a separation, divorce or parenting dispute, our experienced team can help you today.
We’re focused on ensuring that our clients are understood, informed and able to be fairly represented.
You can discuss your same sex relationship matter with our team today during a free consultation.
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