At Stone Group Lawyers our family lawyers are able to assist in all facets of law surrounding gay and lesbian relationships.
In addition to this, we are able to assist in areas involving transgender and intersex individuals. It is our focus to ensure that we are kept well informed of the surrounding laws and changes relevant to the LGBTI communities.
Same Sex Marriages & Divorce
Same sex marriage in Australia became legal on 9 December 2017.
The Marriage Amendment (Definition and Religious Freedoms) Act 2017 is the Act which legalises same sex marriage by amending the Marriage Act 1961.
Now the Marriage Act 1961 refers to marriage as “the union of 2 people to the exclusion of all others, voluntarily entered into for life”. Prior, the Act referred to marriage being simply between a man and a woman.
Same sex couples whose marriages are recognised in Australia can access the divorce system, regardless of when the marriage was solemnised.
The Federal Circuit Court of Australia holds jurisdiction to handle the dissolution of same sex marriages (i.e. divorces) through Part VI of the Family Law Act 1975.
Although same sex divorces are not streamlined online similarly to heterosexual divorces, it is only a matter of time before this is introduced.
In Australia, same sex de facto and married couples have the same rights as heterosexual de facto or married couples when dividing their assets.
If you are in a de facto relationship the courts are required to make an order for property settlement they must be satisfied that:
- You lived together in a relationship for at least two years; or
- You have a child together; or
- You and/or your ex-partner contributed to the relationship financially in substantial ways.
It is important to note that you will only have two years from the date of separation to file an application to the court for property orders or consent orders if you are in a de facto relationship. The deadline if you are married is twelve months from the date of your divorce order. For more information on options available to you such as Binding Financial Agreements and consent orders please click here. If you would like to know more about rights in a de-facto relationship, please click here.
Queensland and Federal governments recognise both parents irrespective of their sex. If a child is born through a formal assisted reproductive technology procedure such as in vitro fertilisation or intrauterine insemination the non-birth parent can be identified as the parent of the child. In this instance, they will be listed on the birth certificate as ‘Parent’. In most cases of this type, whether or not the donor is known they do not have to be listed on the child’s birth certificate.
If you are in a male same sex relationship there are options for parenting. The most common one is to have an altruistic surrogacy arrangement. An altruistic surrogacy arrangement is one where a woman gives birth to a child for another couple and is not paid any money. In this situation, both fathers can be listed on the birth certificate as the parents. It is important to note that is currently illegal to particulate in a commercial surrogacy agreement and pay the woman carrying the child.
As of November 2016 same sex parent adoption is legal in Queensland. In addition to this, LGBTI individual and same sex stepparent adoption are now legal. Now, adoption by same sex couples is legally available in all jurisdictions of Australian except for Northern Territory and South Australia. Our expert family lawyers are able to assist you with your application process and ensuring you comply with all relevant laws.