Family Law Library

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Mathews Family Law have created many detailed articles answering the most common questions people have in relation to their rights and Australian Family Law.


Popular Articles

Vanessa Mathews interviewed – Gay Marriage?

Vanessa Mathews was asked by The Age what impact she thought the legalisation of gay marriage would have on family lawyers?
Click here to read the article http://www.theage.com.au/lifestyle/weddings/gay-marriage-expected-to-be-boost-for-wedding-business-20150601-ghebgd.html

Click here to read more information about same sex de facto relationships: http://mathewsfamilylaw.com.au/samesex/

Spousal Maintenance

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Do co-parents have the same rights as legal parents?

A child born to a lesbian couple will generally have a birth mother and a lesbian co-mother. The current family law system recognizes the birth mother as a legal parent.

A child born to a gay couple will often have a birth father and a gay co-father, as well as a birth mother.

Alternatively, a child may have two gay co-fathers as well as a birth mother. If there is a birth father, he will be a legal parent along with the birth mother.

The lesbian co-mother or gay co-father(s) can apply to the Family Court of Australia for a parenting order, as ‘other people significant to the care, welfare and development’ of the child. But the lesbian co-mother and gay co-father(s) will be treated in the same way as a social parent is treated under the law, they will not be treated in the same way as a birth parent.

A partial resolution to this issue if for the co-parents to apply to adopt the child, this step will entitle the co-parent to many of the rights of a legal parent.

This issue is of particular concern to a gay couple who are both listed as co-fathers, neither member of the couple is a legal parent. Adoption is important in order to enable at least one parent to be a legal parent.

What if my partner says we were not in a relationship?

The Court will consider the length of the relationship, your living arrangements, how you arranged your finances and property ownership, whether there was a sexual relationship, whether or not you had or cared for children and the way you presented your relationship in public.

Am I entitled to a property settlement?

You can make an application for a property settlement under the Family Law Act if any of the following apply:

  • your same sex relationship lasted for at least 2 years;
  • you have a child with your partner; and
  • you have made a substantial contribution to the property or finances of your partner.

How do we settle our property?

The same laws about property apply whether or not you were married or in a same sex relationship. You can start negotiations about property as soon as the relationship has broken down.

In a same sex relationship, you must commence property or maintenance proceedings within two years of your separation.

We are a same sex couple. What are our rights and obligations?

For relationships that break down after 1 March 2009, new laws apply under the Family Law Act.

The same legal principles that apply to financial settlements between parties to a marriage are now applied to settlements between same sex couples.

Superannuation can be split between same sex couples following their relationship breakdown. Spousal maintenance can also be ordered.

Cases between same sex couples pertaining to their legal or adopted children have been regulated by the Family Law Act since 1988.

Establishing co-parents as legal parents of a child

A child born to a lesbian couple will generally have a birth mother and a lesbian co-mother. The current family law system recognizes the birth mother as a legal parent.

A child born to a gay couple will often have a birth father and a gay co-father, as well as a birth mother. Alternatively, a child may have two gay co-fathers as well as a birth mother. If there is a birth father, he will be a legal parent along with the birth mother.

The lesbian co-mother or gay co-father(s) can apply to the Family Court of Australia for a parenting order, as ‘other people significant to the care, welfare and development’ of the child. But the lesbian co-mother and gay co-father(s) will be treated in the same way as a social parent is treated under the law, they will not be treated in the same way as a birth parent.

A person who is a later partner of a birth mother or birth father, is not viewed any differently to a person in a same sex couple who is either the partner of the birth mother or birth father or an active co-parent at the time a child is born. A partial resolution to this issue is for the co-parents to apply to adopt the child, this step will entitle the co-parent to many of the rights of a legal parent.

This issue is of particular concern to a gay couple who are both listed as co-fathers. Adoption is important in order to enable at least one parent to be a legal parent.