Same-Sex Divorce

25 August 2025 in Family and Divorce Law | 4 min read | skip to FAQs

Divorce in Australia can be a challenging process. This process can be even more difficult for LGBTQI+ couples, particularly when there are children involved. With same-sex marriage legalised in Australia just 8 years ago, it is understandable that there may be some grey areas in the law that separating couples may struggle to navigate. Brander Smith McKnight’s experienced and compassionate family lawyers are able to help you understand your rights and responsibilities and protect your entitlements in a same-sex divorce.

Same-sex marriage

In 2017, the Turnbull government conducted a national postal survey to gauge public opinion about whether the law should be changed to allow marriage for same-sex couples. 61.6% of returned votes in favour. This prompted a bill in both the Senate and House of Representatives to amend Section 5 of the Marriage Act 1961 to define marriage as the union of “two people.”

Prior to the amendment of the Marriage Act, same-sex couples were afforded some recognition and legal protections as “de facto partners”. However, they were required to prove their de facto relationship status, while heterosexual couples did not. Once established, though, their de facto status allowed couples to have the same rights as married couples in the separation process.

Today, the basic process of divorce is the same for everyone, regardless of sexuality or gender.

Property settlements and parenting matters

The rules surrounding property settlements and parenting matters in same sex divorce are generally the same as those in heterosexual divorces.

Before the legalisation of same-sex marriage, same-sex couples were afforded the same rights as heterosexual de facto couples when it came to property settlement entitlements, only where they could prove they were in a de facto relationship. Today, the rules surrounding property settlement and the division of assets are the same for all.

When it comes to parenting matters, the law generally assumes the parents have equal shared responsibility of their children, regardless of whether they are same-sex or not. Parents have equal rights in making decisions about their children, such as where they will live and where they will go to school. This can be arranged through a parenting plan or order. For more information, please see our article on parenting arrangements .

Changes to Divorce in 2025

Changes to divorce provisions in the Family Law Changes in 2025 include.

1. Previously : If a marriage lasted less than two years, the parties were required to attend counselling and apply for permission (known as seeking leave) from the Court before filing for a divorce. Since June 2025, there is no need for parties to provide a counselling s601 certificate, or apply for permission from the Court when submitting their divorce application.
2. Previously : In divorce applications with an absent party, the courts considered conditions such as the presence of children under 18 yrs or an objection from another party. Since June 2025, sole applicants don’t need to appear in court, even if there are children under 18 yrs involved. For this to occur, there must be no objection from the ex-partner.
3. Previously : Divorce proceedings could be effective prior to the implementation of proper parenting arrangements. Since June 2025, official parenting arrangements must be in place before divorce proceedings that include children under 18 yrs can occur.

The Addition of Companion Animals

Since June 10 2025 companion animals have been included in the legislation surrounding divorce. Disputes regarding ownership and shared care of pets have increased and to address when couples cannot come to an agreement, the courts can now make one of three new orders.

1. That only one party to the relationship, or a party joined to the proceedings, is to have ownership of the animal;
2. The animal is to be transferred to another person who has consented to the transfer; or
3. The animal is to be sold.

The legislation also outlines the factors that the Court can take into account when making one of the above orders, including:

1. the circumstances of the acquisition of the companion animal;
2. who has ownership or possession of the companion animal;
3. the extent to which each party cared for and paid for the maintenance of the companion animal;
4. any attachment by a party or child of the marriage to the companion animal;
5. domestic violence to the partner or cruelty to the pet;
6. the ability to care for the pet in the future.

Recognising Financial Abuse as Domestic Violence

Examples of this are:

1. Unreasonably denying the family member financial autonomy;
2. Unreasonably withholding financial support needed to meet the reasonable living expenses of a family member or the family member’s child;
3. Coercing a family member (by threats or abuse) to give or seek money or other items as a dowry; or
4. Hiding or falsely denying things done in connection with the practice of a dowry.

The 2025 family law amendment addresses the power imbalance and exploitations that may occur through economic and financial abuse.

Considering Family Violence in Property Settlement

The 2025 amendments requires the Court to consider the effects of family violence when making property settlement orders. Specifically, “the effect of any family violence, to which one party to the marriage has subjected or exposed the other party”. This is now considered when the court makes orders regarding maintenance, alteration to property interests and superannuation splitting orders.

How can BSM Sydney Lawyers assist you?

The experienced and compassionate family lawyers at BSM Sydney Lawyers are proud of their ability to settle over 95% of divorces without court litigation, saving our clients time, money and stress. The family and divorce lawyers at BSM Sydney Lawyers remain up to date with the most recent legislation, are expert negotiators and powerful advocates. We recognise that this can be a confronting and stressful time and will support you through this process. Our senior family lawyers offer a free 20 minute consultation.

FAQs

BSM Lawyer Sydney has offices conveniently located in Sydney CBD, Sutherland, Parramatta, Shellharbour and Wollongong.