Same sex marriage became legal in Australia in 2017 following the commencement of the Marriage Amendment (Definition and Religious Freedoms) Act 2017. Same sex couples who are recognised as de facto couples still have largely the same rights and obligations in family law matters as married couples.
The main difference between de facto couples and married couples, is that de facto couples must prove the existence of their de facto relationship prior to commencing property proceedings. Parties to a marriage do not face this additional barrier and must simply provide proof of their marriage (usually by producing their marriage certificate) to commence property proceedings.
The same requirements and process applies to same sex spouses applying for divorce as it does for heterosexual spouses applying for divorce. That is, that the parties must have been separated for 12 months prior to applying for divorce.
Same sex de facto couples 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. In some cases, people have been found to be living together on a genuine domestic basis, even if they have two homes. If you think you might be in a de facto relationship, you should seek advice from a family law expert.
Same sex marriage became legal in Australia in 2017 following the commencement of the Marriage Amendment (Definition and Religious Freedoms) Act 2017.
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.
Some key things to consider for parties going through a same-sex divorce are:
- Applying for divorce is not the same thing as finalising a property settlement or seeking orders for parenting arrangements after separation. These are both separate processes and you should seek advice about this from an experienced family lawyer.
- You can make an application to the Court for a property settlement or spousal maintenance at any time including before you file for divorce and up to one year after the divorce has come into effect.
- You can apply for a divorce order regardless of whether both parties want it.
- Australia has ‘no fault divorce; which means the Court does not consider the reasons for the breakdown of marriages, instead focusing on whether one or both of the parties considers there to be no chance of reconciling the relationship.
Overseas same-sex marriages
The 2017 amendments to the marriage laws in Australia mean that same sex couples who married in a foreign country prior to 2017 can apply for divorce in Australia. The law now also recognises all same sex divorces granted overseas prior to the 2017 amendments.
Prospective same-sex spouses also have all the same rights as any other prospective married couple to enter into a Binding Financial Agreement before marriage, sometimes known as a pre nup. These agreements can also be entered into before or during a de facto relationship, or even during a marriage.
Same-Sex domestic violence
Growing research into LGBTIQ issues has found that Lesbian, Gay, Bisexual, Trans and Queer (LGBTIQ) people are not only more likely to experience family violence but less likely to recognise, report and receive appropriate support in response.
Recent studies and National Enquiries (www.dvafoundation.org/resources and the 2015 Royal Commission into Family Violence) have found that:
- 1 in 2 LGBTIQ people will experience domestic, family and intimate partner violence and abuse (DV) in their lifetime;
- LBGTIQ are at greater risk of experiencing sexual coercion than heterosexual women
- 62% of transgender males and 43% of intersex females have experienced abuse in their relationship.
LGBTIQ people face unique challenges in relation to intimate partner violence. “Outing” or threatening to reveal one partner’s sexual orientation/gender identity may be used as a tool of abuse in violent relationships and may also be a barrier which reduces the likelihood of help-seeking for the abuse. Prior experiences of physical or psychological trauma, such as bullying and hate crime, may make LGBTIQ victims of domestic violence less likely to see help.
In response to these unique challenges, FGD established an LGBTIQ Legal Service which is tailored to making legal advice more accessible for LGBTIQ identifying clients. This service is headed up Daniel Magnussen and Kasey Fox who specialise in family law and domestic violence.
Our lawyers have specialised knowledge of same-sex divorce and same-sex property settlements and parenting issues.
We also have an LGBTIQ Legal Service which is tailored to making legal advice more accessible for LGBTQ identifying clients. This service is headed up Daniel Magnussen and Kasey Fox who specialises in family law.
We recommend seeking advice from one of our same-sex divorce lawyers if you need help negotiating financial, property and parenting issues should your relationship breakdown.
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 fierce advocate for his clients’ rights and is skilled in both negotiated settlements and Courtroom advocacy. Daniel is also a member of the Out for Australia LGBTIQ mentoring initiative and regularly mentors young LGBTIQ professionals interested in the legal industry. He 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.
Examples of just some of the questions we can you answer are:
Examples of just some of the questions we can help you answer are:
- If we break up what does the law say?
- My partner and I are considering a sperm donor to conceive, what do we need to know
- Does the law consider my relationship a de facto relationship?
- If my partner and I have never lived together but we share property, what happens to the property if we separate?
- I separated from a former partner and am now in a new relationship but did not have a property settlement with my former partner, am I at risk?
- If I have a child with someone else but I do not consider that we are in a relationship, is my property at risk and how do I protect myself?
- Does superannuation factor into property settlement, and if so, how?
- My former partner and I have a child together, but we did not live together, am I (or is my partner) entitled to a property settlement?
- My partner moved into the home that I bought in my name prior to our relationship. We have now separated. Do they have a legal or other interest in the property?
- My former partner and I cannot agree on how to divide our property, what are the options available to us to reach agreement?
- My former partner and I have reached agreement in relation to the division of our property, how do we formalise the agreement so that it is legally binding?
- My LGBTIQ partner conceived a child by IVF, am I a parent?