Same-Sex Divorce

5 December 2022 in Family and Divorce Law

Divorce in Australia can be a challenging process. This process can be even more difficult for LGBTQI+ couples, particularly when there are children in the picture. With same-sex marriage legalised in Australia just 5 years ago, it is understandable that there may be some grey areas in the law that separating couples may struggle to navigate. Our 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. To learn more about the divorce process, read our article here.

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. Read more about parenting arrangements here.

Legal Parentage

Determining the legal parentage of children is one of the more difficult aspects of same-sex divorce and parenting.

Legal parentage has historically been decided by the Courts by asking who has “begotten or borne” a child. However, with an increase in surrogacy, sperm donors and IVF as alternatives to the traditional nuclear family, this concept is up for interpretation.

With this in mind, when couples separate or divorce, it is critical that legal parentage is established to make matters clear. This is regardless of whether the fact a person is a biological parent has a bearing on their parenting abilities or everyday life.

A parent is only defined as a biological or adoptive parent under the Family Law Act 1975 (The Act). To make matters more confusing, the legal rights of families may be dependent on how the family was created, based on what state or territory you are in.

In NSW, for example, if you are not the “legal” parent of a child, you must apply to the Court for a parenting order. These are usually made when the applicant is considered to be a “person concerned with the care, welfare and development of a child”.

Legal parentage should be established regardless of whether you are considering separation. Our skilled family lawyers can assist you by applying for a parenting order and ensuring your rights as a parent are protected under the law.