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Same Sex and De Facto Relationships

Since 2009, the Family Law legislation deals with all parenting and property matters that deal with de facto relationships (including same sex relationships).

We provide legal services to people who have separated from their same sex partners. If you find yourself in this situation and have separated from your partner, then we can assist you with all custody and parenting arrangements, financial matters, spousal support and surrogacy or adoption issues.

Same sex relationships are considered in the same way as de facto relationships and fall under the Family Law Act. Gay and lesbian clients have the same rights as those whose relationships have ended. We are available to assist you and have extensive experience in gay and lesbian issues.

 

What is the meaning of de facto relationship in the Family Law Act 1975?

A person is in a de facto relationship with another person if:

  1. the persons are not legally married to each other; and
  2. the persons are not related by family and
  3. having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis

 

Does a De facto Relationship Exist?

When there is an argument about the existence of a de facto relationship, the Court works this out by exploring any or all of the following:

  1. the duration of the relationship;
  2. the nature and extent of their common residence;
  3. whether a sexual relationship exists;
  4. the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
  5. the ownership, use and acquisition of their property;
  6. the degree of mutual commitment to a shared life;
  7. whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
  8. the care and support of children;

Further, the Family Law Act states that a de facto relationship can exist between 2 persons of different sexes or of the same sex. A de facto can also exist if one of the persons is legally married to someone else or is in another de facto relationship.

 

De Facto/Same Sex Separation

Since 1 March 2009, the Family Court has the power to make orders that adjust property between same sex or de facto couples who have separated. Therefore, when it comes to parenting, property and financial matters between de facto or same sex relationships they are treated in the same way as married people under the Family Law Act 1975 (Cth) (Parts VII, VIII and VIIIA).

Since same sex marriage is not yet legalised in Australia, there is no such thing as a same sex divorce under the Family Law Act, so there is no requirement for a Divorce Application.

 

De Facto/Same Sex Relationship Separation – what you need to know

If your de facto or same sex relationship is over, then all you need to know is that you have a two (2) year limitation period, to sort out your property and financial matters (resource download) . If the two (2) year limitation period has expired, you may request leave from the Court to file an Application for property adjustment or you may do so with consent from your former partner.

There is no limitation period when it comes to applications to the Court with respect to parenting matters.

 

De Facto/Same Sex Parenting Concerns

In most cases of de facto or same sex separation where they have children and their relationship has broken down, they attend mediation and try and sort out the parenting of their children post –separation.

Problems arise however where one person denies the other person a relationship with the children and worse still behaves in such a way that the other parent (non-biological) parent is not a parent of the child.

It is important to know that On 22 September 2008, the NSW government amended the Status of Children Act 1996 so that a woman who is in a de facto relationship with the birth mother of a child conceived through artificial insemination is now recognised (through an irrefutable presumption) as the other parent of the child.

The Family Law Act, under section 60H recognises children born as a result of artificial conception to be the child of a woman and her de facto partner (the other intended parent) who were in a relationship at the time of consenting to the artificial conception of the child. A child is recognised to be the child of the couple, whether or not the child is biologically the child of the woman and her partner.

 

The issues that arise in same sex and gay divorce parenting matters are identical to the issues that arise in heterosexual relationships. Some of these issues may be:

  • Which parent the child will live with
  • How much time the child will spend with the other parent
  • Who will make the important decision about the child’s school
  • Whether the child can travel international

The answers to these issues of same sex separation will depend on the individual circumstances of the situation and will be guided by the paramount principle of the “best interests of the child”.

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