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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.

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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.

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Can a same-sex male couple have a child through international surrogacy?

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.

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We are a gay couple and we want to start a family. Can we have a child through surrogacy in Australia?

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”.

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Do we have any rights as a couple?

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.

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My partner and I plan to get married next month in New Zealand. Will our marriage be legally recognised in Australia?

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”.