Author: Vanessa Mathews

Partners in a same sex couples can now be compelled to pay maintenance to the other partner after separation under the same provisions that apply to separated married couples.

One difference for same sex couple maintenance order is that it will automatically end if the party receiving maintenance marries. In the case of the receiving party entering into a de facto relationship, the paying party can apply to have the order set aside.

A same sex couple relationship is defined as one in which a couple lives together in a genuine ‘domestic situation’.  There will be a close personal relationship between two adults whether related to one another or not, one or each of whom gives domestic support and personal care.

A court will make orders if it is satisfied that:

• the couple had a child together;
• the couple lived together for at least two years; or
• the applicant made financial or non-financial contributions or cared for the other party’s child and injustice would result if an order were not made.

The laws relating to property settlement at the end of a same sex de facto relationship have recently changed. For relationships that have broken down since 1 March 2009, the Court now deals with all of the legal aspects of the separation, including any parenting agreement, property settlement and maintenance. As a result, parties to relationships that have broken down after 1 March 2009 may have more extensive entitlements than they would have had under state law.

The lawyers at Mathews Family Law & Mediation Specialists Melbourne understand the difficulties involved and the unique nature of individual relationships. We have extensive experience negotiating property settlements for couples who have a substantial asset pool, such as a major property/share portfolio or a family business. The process of a breakdown in a de facto relationship can be just as complex as divorce. We understand both the emotional and the commercial implications of splitting assets. We are committed to ensuring a fair settlement is achieved as quickly as possible, we aim to reduce the time taken and therefore the cost to you.

In addition to helping couples after a relationship breakdown, we can also provide advice to clients who may be considering entering into a de facto relationship and want to protect their assets and financial independence.

If you have recently ended a same sex couple relationship, or are considering entering into a same sex couple relationship and would like to know how these changes affect you, Mathews Family Law & Mediation Specialists is a leading family law firm in Australia, please contact us on +61 3 9804 7991 to speak with a family lawyer from our law firm today. You can also send through your enquiry online now and we will contact you shortly.

Adoption by same-sex couples is legal only in the ACT, Western Australia and New South Wales.

International commercial surrogacy – hiring a surrogate in another country – is legal in all Australian states EXCEPT Queensland, the ACT and New South Wales.  Some same-sex male couples choose to hire surrogates in the United States or Canada, but this can be very costly.  While fees to the actual surrogate may be only $25,000 – $30,000, the addition of travel, medical, legal and clinic fees may bring the cost up to $100,000 to $200,000.

India is no longer an option for same-sex couples.  In 2012, Indian law changed and only heterosexual couples, married for at least two years, may hire surrogates in India.

There are numerous international treaties and agreements as well as federal and state Australian laws surrounding international surrogacy.  Speak to a family lawyer experienced in issues of surrogacy before starting the process.

Altruistic surrogacy  is legal in all of Australia and open to same-sex couples according to the Assisted Reproductive Treatment Act, 2008 (ART) (copy of ART on the website).   You will need to find a surrogate, to actually carry the fetus, as well as an egg donor.  Australian law requires that the egg may not come from the surrogate.  The sperm donor may be you or your partner, or through an outside sperm donor.

After the baby is born, you will not automatically be recognised as the child’s parents.  According to the law, the surrogate is the child’s mother.  You and your partner will need to apply to the county or Supreme court for “substitute parenting orders”.

Same-sex couples are generally recognised as de facto couples in Australia.   Some states – the ACT, New South Wales, Tasmania, Queensland and Victoria – have a relationship registry which will help prove that you are in a de facto relationship, if necessary.   Otherwise, in most states a same-sex couple has the same rights as any other de facto couple.

Not yet.  Despite the legalisation of same-sex marriages in countries throughout the western world and a fifth of the states in the United States, lesbian and homosexual couples still can’t legally exchange vows in Australia.  And going overseas – even as close as New Zealand, which legalised same-sex marriages in April 2013 – won’t help.  The marriage certificate given abroad has no standing in Australia.

Section 88 of the Marriage Act, 1961 refers to marriages conducted abroad.  An overseas marriage is valid in Australia ONLY if it is recognised as valid in the country where it took place (ie Argentina, Belgium, Canada, Denmark, etc.) at the time it was entered into AND if the marriage would have been legal under Australian law had it taken place in Australia.  Just to be sure the point is clear,  section 88EA was amended in 2003 and clearly states that a union between two men or between two women conducted abroad “must not be recognised as a marriage in Australia”.

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 de facto partners.

Superannuation can be split between de facto partners following their relationship breakdown. Spousal maintenance can also be ordered.

Cases between de facto partners pertaining to their children have been regulated by the Family Law Act since 1988.

The laws relating to property settlement at the end of a de facto relationship have recently changed. For relationships that have broken down since 1 March 2009, the Family Court now deals with all of the legal aspects of the separation, including any:

Child Support Agreement,

Parenting Plan or

Parenting Order.

Child Support

Child Support can be sought via the Child Support Agency or a Child Support Agreement.

Parenting Orders. may be sought in the Local Court, the Federal Circuit Court or the Family Court. The principles that apply to the children of marriages also apply to the children of de facto relationships.

Separation agreements are a type of Binding Financial Agreement. A separation agreement is entered into in anticipation of, or at the conclusion of a de facto relationship. These agreements can provide for the division of the parties’ property and maintenance.