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IAFL Global Comparison of LGBT Laws

The International Academy of Family Lawyers, of which Vanessa Mathews is a Fellow, has published a global survey of Lesbian Gay Bisexual Transgender laws (LGBT laws), the results of which can be found here https://www.iafl.com/media/5336/2019-iafl-lgbt-survey.pdf.

The IAFL LGBT Committee stated ‘Laws affecting LGBT people vary greatly by country or jurisdiction. There are now 28 jurisdictions that accept same sex marriage, however gay sex remains illegal in many jurisdictions with the death penalty still applying in 14.

The International Academy of Family Lawyers (“IAFL”) supports all efforts towards full equality of the LGBT community throughout the world and the end to rules that unfairly discriminate against such individuals and, in many countries, criminalize countless couples because of the ones they love. There remains a lot of work to be done.
The work done by some fellows of the IAFL is having a real impact and changing for the better the lives of LGBT people. The LGBT Committee of the IAFL commissioned this survey to capitalize on the knowledge and expertise of some members for the benefit of the IAFL as a whole and the LGBT community.

The individual submissions in this survey are the work of fellows of the IAFL who have kindly donated their time and expertise to answer the same questions as set out below. Each of the contributor’s names and contact details are included.

The LGBT Committee intends that this should be a living resource. We are asking those who have already kindly donated their time to keep us informed as laws change in their jurisdictions. We have detailed submissions from 46 jurisdictions, however, there remains a good number of jurisdictions not covered where the IAFL has fellows. If your jurisdiction is not covered and you feel able to complete a survey, please get in touch with the IAFL.’

Congratulations to the IAFL LGBT committee members for preparing such a comprehensive review of comparative laws.

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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.

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Children of a same sex couple relationship

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.
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Property

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 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.

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Binding Financial Agreements between same sex couples

Parties to a same sex couple relationship can make binding financial agreements. A financial agreement can be made either before the relationship begins at any time during the relationship or on separation. The agreement can cover matters such as:

  • responsibility for expenses;
  • classification of property owned by the parties as either joint or individual property;
  • the categorisation of property acquired during the relationship as either joint or individual;
  • responsibility for debts; and
  • division of property and maintenance if separation occurs.

If you have come to an agreement without legal advice, you should obtain advice before you sign anything. Mathews Family Law & Mediation Specialists can provide you with the advice needed to make an informed decision before you enter into a binding financial agreement. We can also assist by drafting the agreement for you to ensure that it covers all the legal requirements that you may not have thought of.

Mathews Family Law is a Melbourne law firm. 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.

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Proof of a de facto relationship

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.
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Same sex de facto relationships

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.

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Lesbian Couples, Donors and Parenting Disputes

Many same-sex couples in Australia are now having children and building families through sperm and egg donation, surrogacy and adoption.  In many ways, lesbian couples have a simpler legal situation than gay couples if one of the women is the biological mother of the child.  But there are still complications facing them, and even more facing those couples who choose to use an outside surrogate to carry and birth their child.

The Law in Victoria

According to the Assisted Reproductive Treatment Act 2008, which was passed in December 2008 in Victoria and came into operation on 1 January 2010, both the biological mother and her female partner are considered the legal parents of the child.  The Act (s. 147) says that if a woman who is in a lesbian relationship or no relationship undergoes assisted reproductive treatment or artificial insemination, the woman’s female partner is “presumed, for all purposes, to be a legal parent of any child born as a result of the pregnancy” so long as she was the biological mother’s partner when she underwent the procedure AND consented to the procedure.  This applies whether the child was conceived with the mother’s own ovum or through donated ovum.  The Act also states that the sperm donor – whether or not the mother knows him – is presumed NOT to be the father of the child.

Federal Law

Since November 2008, federal law has recognised the rights of both partners in a lesbian relationship, regardless of who the birth mother is, the method used to conceive the child and the identity (known or unknown) of the sperm donor.  The only condition required by federal law is that the non-birth mother consented to the procedure and that the couple was in a de facto relationship.

Since the changes in legislation, the birth mother and her partner are automatically listed as the child’s parents on his or her birth certificate.  Prior to the reforms, the sperm donor could be listed on the birth certificate as a parent.   However, if a child is conceived through sexual intercourse with the donor (and not artificial insemination or another type of procedure), the donor is the child’s legal parent.  The law does not permit a third parent to be listed.

If a child was born prior to the reforms, and only the biological mother is listed on the birth certificate, the birth certificate can be amended to include the non-birth mother.   To add the non-birth mother, a form must be submitted to the Registry of Births, Deaths and Marriages and both mothers must sign a declaration that the non-birth mother consented to the procedure.  If the child was born prior to the reforms and the sperm donor is listed as father, his name will have to be removed and then the non-birth mother’s name added.  This requires a County court order.

Simply put, both federal and state law make both members of a lesbian couple the legal parents of the biological child of one of the women.  This means that both mothers have all legal obligations, rights and responsibilities to their children according to Australian law, including maintenance, custody and child support.

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The Current International Trend – Recognizing Same-Sex Marriages

Throughout the world, same-sex marriage is being legalized.  Eleven countries, including South Africa, Argentina, Belgium and Spain, now recognize same-sex marriages.  Nine states in the United States have legalized it.  Most recently, New Zealand legalized marriage between members of the same gender, a vote that was wrought with so much emotion the parliament literally erupted in song.  Some Parliament members in Australia are calling for marriages conducted in New Zealand to be recognised in Australia.

Australia is not quite there yet.  In 2009, the first bill for same-sex marriage was brought before the federal parliament in Australia.  That bill, and the one brought in February 2010, did not pass.  Most recently, in September 2012, two bills permitting same-sex marriage were defeated in both houses of the Parliament.  The Prime Minister, Julia Gillard, supported the bills but allowed members of the ALP a conscience vote.

It’s not clear when, but same-sex marriage in Australia is headed toward legalization.  Public opinion is strongly in favor.  In a recent poll taken by the Essential Report, 54% of Australians said they thought same-sex marriage should be allowed, with only 33% sayin