At Farrar Gesini Dunn (‘FGD’) we recognise the unique barriers that the Lesbian, Gay, Bisexual, Trans, Intersex and Queer (‘LGBTIQ’) community face when navigating the legal system.
We seek to traverse these barriers by providing a specialised service to LGBTIQ clients who are dealing with LGBTIQ family law issues or who would prefer to see a lawyer with experience in, and an understanding of, the unique issues and barriers facing members of the LGBTIQ community.
We are able to provide advice in relation to a range of LGBTIQ legal issues including:
- Family law;
- Family and domestic violence;
- Prenups and Binding Financial Agreements;
- Gender Identity and Transition;
- Surrogacy and parenting rights;
- IVF and parentage;
- Donor agreements;
- LGBTIQ Children’s Rights; and
- Estate planning, Wills, Guardianship and Enduring Powers of Attorney.
LGBTIQ legal advice
We offer in-person appointments with LGBTIQ friendly lawyers every Tuesday evening from 5:00pm – 6:00pm or Friday morning from 8:30am – 10:30am or at other times that work for you. If you are not able to attend our office in Canberra, we can arrange a telephone or video appointment. Please contact our client intake team if you would like to make an appointment on 02 6115 9000 or firstname.lastname@example.org.
Our LGBTIQ legal service is led by Daniel Magnussen and Kasey Fox.
Daniel is a specialist family lawyer and has experience across a broad range of areas within this field including issues unique to LGBTIQ clients. He is a strong advocate and recognises the importance of creating a legal industry that reflects the diversity of the clients it advocates for and represents.
Kasey is a family lawyer and Director of FGD. She is an LGBTIQ ally and has an understanding an appreciation of LGBTIQ issues, including litigation with respect to conception and parentage disputes, collaborative law, rainbow families and donor advice.
Same-sex marriage and divorce and LGBTIQ couples
Following the amendment of the Marriage Act in 2017, same sex couples in Australia were given a number of legal benefits, including the right to marry. This also means that same sex couples who have married either in Australia or overseas are now recognised under the Family Law Act 1975.
By extension, this means that same sex marriages are subject to the same divorce process in Australia. This has consequences for property settlement, spousal maintenance and parenting arrangements. You should contact an experienced family lawyer to discuss how these may apply to your situation.
This also means that in order for same sex couples to get divorced, they must first demonstrate that the marriage has broken down ‘irretrievably’. This carries with it a requirement for parties to be separated for at least 12 months. You can read more about divorce and separation for family law purposes here.
Same-sex de facto relationships
Same sex de facto couples also fall under the Family Law Act 1975.
What is a de facto relationship?
The Family Law Act states that a person is in de facto relationship with another person if they are not legally married and have been living together as a couple on a genuine domestic basis.
There are a range of factors which are taken into consideration in determining the above, however generally you will need to show that you and your partner have lived together for at least a period of two years. Although, this is not required in cases where there is a child of the relationship or in other exceptional circumstances such as where there has been a substantial intermingling of finances and assets.
Same-sex and LGBTIQ property settlements
If you are in a de facto relationship or a marriage, you may be subject to a property settlement under the Family Law Act.
The method of working out what is a “just and equitable” property settlement for all married couples and de facto couples (who separated after 1 March 2009) is set out in the Family Law Act 1975.
When the Family Court is required to make a determination of the respective entitlements of the parties property interests, the Court conducts a Four Stage inquiry:
- What are the joint and several assets and liabilities held by the parties.
- What proportions can the parties be said to have “contributed” to the acquisition, conservation and improvement of the assets and how have the parties contributed to the overall welfare of the family.
- What are the “future needs” of the parties – that is the court considers whether any property adjustment should be made to accommodate the foreseeable future circumstances of the parties (including different earning capacity, poor health, and primary care of the children).
- Is an adjustment to the existing property interests held by the respective parties necessary to ensure the final division of assets, in light of the above first three stages, would be described as ‘just and equitable’.
Most matters are resolved by agreement, without the court needing to make a final decision, as a result of advice provided by lawyers as to the parties potential entitlements based upon the above Four Stage approach.
LGBTIQ domestic & family violence
Studies have shown that Lesbian, Gay, Bisexual, Trans, Intersex and Queer people are not only more likely to experience family violence but less likely to recognise, report and receive appropriate support in response.
For a lot of LGBTIQ people there are very real barriers to accessing support in situations of domestic and family violence. Homophobia, transphobia and stigma can all affect the experience of, and responses to, intimate partner violence amongst LGBTIQ people. Furthermore, service providers often lack awareness and understanding of the LBTIQ population and their experience of intimate partner violence.
At FGD, Daniel Magnussen is a specialist in LGBTIQ family and domestic violence. You can read more about the law surrounding domestic and family violence as it applies in different jurisdictions around Australia here.
Same sex couples whether they are married or de facto have the same parenting rights under the Family Law Act 1975.
It is important that all arrangements which relate to the children are in the children’s best interests. This includes who they spend time with and who they live with as well as practical matters such as how the child will go from living with/spending time with one person to living with/spending time with the other person (commonly known as ‘changeover’ or ‘handover’).
The law says that in making decisions about what is in the best interests of the child it is important that the child has a meaningful and significant relationship with both parents, but also (and so long as) the child is protected from harm.
Every family and every set of circumstances is different. There is no ‘one size fits all’ model for determining what type of arrangements are going to work for you and your family.
If you are separating or thinking about separation then we strongly recommend that you make an appointment with us to get specific advice which is relevant to your circumstances.
Same-sex prenups & binding financial agreements
Just as with property and parenting, same sex married and de facto couples are also able to enter in Binding Financial Agreements (BFA’s), commonly known as “pre-nups”. These Agreements set out what is to happen in relation to property settlement and/or spousal maintenance in the event of a relationship breakdown. Couples can enter into a BFA at any time; those who are engaged or planning on getting married, or are currently married, those who are planning on moving in together or starting a de facto relationship, and those who are separated can use a Financial Agreement.
Read more about Binding Financial Agreements.