Author: Vanessa Mathews

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 than 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.

The laws relating to property settlement at the end of a same sex couple 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.

One of the most important, and perhaps the most difficult, issue facing couples who separate is the question of ‘who gets what?’ The Family Law Act provides for property settlements same sex couples. Most property settlements are dealt with by the Federal Circuit Court or the Family Court.

The laws relating to property settlement at the end of a same sex couple 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.

Depending on the length and dynamic of the relationship, as well as the way that the parties have arranged their finances, a property settlement can be quite simple or involve complex negotiations.

Both financial and non-financial contributions are taken into account when determining de facto property division. The new changes to de facto laws now allow for future needs and superannuation splitting arrangements to be considered as well. The Court will consider the financial and non-financial contributions made by each party and divide the property in a manner that is just and equitable.

Strict time limits apply to commencing property settlement proceedings in a Court. You must apply for a Court Order within two years from the date your same sex couple relationship ends. It is important that you seek proper legal advice as soon as possible.

The family law property 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. 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.

Mathews Family Law is a leading Australian family law firm. Please contact us on +61 3 9804 7991 to speak with our family and divorce lawyers today. You can also send through your enquiry online now and we will contact you shortly.

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

Binding Financial Agreements can be made between parties in a same sex couple relationship. These agreements can be made before, during or after the same sex couple relationship.

Same-sex couples have the same rights and obligations under Australian family law as other couples when it comes to financial agreements, property settlements and relationship breakdown.

A Binding Financial Agreement (BFA) can be entered into by eligible same-sex couples:

• before entering a marriage or de facto relationship;
• during a relationship; or
• after separation.

A BFA allows couples to agree in advance how certain financial matters will be dealt with if their relationship ends.

What Can a Binding Financial Agreement Cover?

A Binding Financial Agreement may address a range of financial issues, including:

• responsibility for household and relationship expenses;
• whether particular assets are treated as individual or joint property;
• how property acquired during the relationship will be treated;
• responsibility for debts and liabilities;
• how assets and financial resources will be divided if separation occurs; and
• spousal maintenance arrangements.

The agreement can be tailored to reflect the individual circumstances, financial arrangements and future intentions of each couple.

Why Might Same-Sex Couples Consider a Binding Financial Agreement?

There are many reasons a same-sex couple may consider entering into a BFA, including:

• protecting assets accumulated before the relationship;
• clarifying financial arrangements where one or both partners have significant assets;
• protecting business interests, trusts or investments;
• providing certainty for blended families;
• addressing differences in wealth, income or financial contributions; and
• reducing uncertainty in the event of separation.

Every relationship is different, and the suitability of a Binding Financial Agreement will depend on each couple’s circumstances and objectives.

Do I Need Legal Advice Before Signing a Binding Financial Agreement?

Yes.

Binding Financial Agreements are complex legal documents and strict requirements apply for an agreement to be legally binding.

If you have reached an agreement with your partner, it is important to obtain independent legal advice before signing any document.

An experienced family lawyer can help you understand:

• your legal rights;
• the effect of the proposed agreement;
• the advantages and disadvantages of entering into the agreement; and
• whether the agreement properly reflects your intentions.

Binding Financial Agreement Lawyers Melbourne

At Mathews Family Law & Mediation Specialists, our Accredited Family Law Specialists assist same-sex couples with:

• preparing Binding Financial Agreements;
• reviewing proposed agreements;
• providing independent legal advice;
• advising about property and financial arrangements; and
• resolving complex financial matters following separation.

Our approach combines specialist family law expertise with practical advice designed to provide certainty and protect your interests.

Contact Mathews Family Law & Mediation Specialists to discuss whether a Binding Financial Agreement is appropriate for your circumstances.

About Vanessa Mathews — Accredited Family Law Specialist

This page was prepared and reviewed by Vanessa Mathews, Principal of Mathews Family Law & Mediation Specialists. Vanessa is an Accredited Family Law Specialist, Accredited Family Dispute Resolution Practitioner (FDRP) and Mediator who practises exclusively in family law. She assists clients throughout Australia with separation, divorce, parenting disputes, property settlements, financial agreements and other complex family law matters.

Helping families resolve conflict through specialist legal expertise and constructive dispute resolution.

Last reviewed: 24 July 2026

Disclaimer: This page provides general information only and does not constitute legal advice. Every family law matter is different and you should obtain advice tailored to your circumstances.

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.