Access our article library below

We are a same sex couple. What are our rights and obligations?

For relationships that break down after 1 March 2009, new laws apply under the Family Law Act.

The same legal principles that apply to financial settlements between parties to a marriage are now applied to settlements between same sex couples.

Superannuation can be split between same sex couples following their relationship breakdown. Spousal maintenance can also be ordered.

Cases between same sex couples pertaining to their legal or adopted children have been regulated by the Family Law Act since 1988.

Children of a same sex couple relationship

The laws relating to property settlement at the end of a same sex couple relationship have recently changed. For relationships that have broken down since 1 March 2009, the Family Court now deals with all of the legal aspects of the separation, including any:

• Child Support Agreement,
• Parenting Plan or
• Parenting Order.

Binding Financial Agreements between same sex couples

Parties to a same-sex couple relationship can make binding financial agreements. A financial agreement can be made either before the relationship begins at any time during the relationship or on separation. The agreement can cover matters such as:

• responsibility for expenses;
• classification of property owned by the parties as either joint or individual property;
• the categorization of property acquired during the relationship as either joint or individual;
• responsibility for debts; and
• division of property and maintenance if separation occurs.

If you have come to an agreement without legal advice, you should obtain advice before you sign anything. Mathews Family Law & Mediation Specialists can provide you with the advice needed to make an informed decision before you enter into a binding financial agreement. We can also assist by drafting the agreement for you to ensure that it covers all the legal requirements that you may not have thought of.

Mathews Family Law is a Melbourne law firm. Please contact us on +61 3 9804 7991 to speak with a family lawyer from our law firm today. You can also send your inquiry online now and we will contact you shortly.

Maintenance in Same Sex Relationships

Partners in a same sex couples can now be compelled to pay maintenance to the other partner after separation under the same provisions that apply to separated married couples.

One difference for same sex couple maintenance order is that it will automatically end if the party receiving maintenance marries. In the case of the receiving party entering into a de facto relationship, the paying party can apply to have the order set aside.

Same sex de facto relationships

The laws relating to property settlement at the end of a same sex de facto relationship have recently changed. For relationships that have broken down since 1 March 2009, the Court now deals with all of the legal aspects of the separation, including any parenting agreement, property settlement and maintenance. As a result, parties to relationships that have broken down after 1 March 2009 may have more extensive entitlements than they would have had under state law.

The lawyers at Mathews Family Law & Mediation Specialists Melbourne understand the difficulties involved and the unique nature of individual relationships. We have extensive experience negotiating property settlements for couples who have a substantial asset pool, such as a major property/share portfolio or a family business. The process of a breakdown in a de facto relationship can be just as complex as divorce. We understand both the emotional and the commercial implications of splitting assets. We are committed to ensuring a fair settlement is achieved as quickly as possible, we aim to reduce the time taken and therefore the cost to you.

In addition to helping couples after a relationship breakdown, we can also provide advice to clients who may be considering entering into a de facto relationship and want to protect their assets and financial independence.

If you have recently ended a same sex couple relationship, or are considering entering into a same sex couple relationship and would like to know how these changes affect you, Mathews Family Law & Mediation Specialists is a leading family law firm in Australia, please contact us on +61 3 9804 7991 to speak with a family lawyer from our law firm today. You can also send through your enquiry online now and we will contact you shortly.

Can a same-sex male couple have a child through international surrogacy?

International commercial surrogacy – hiring a surrogate in another country – is legal in all Australian states EXCEPT Queensland, the ACT and New South Wales.  Some same-sex male couples choose to hire surrogates in the United States or Canada, but this can be very costly.  While fees to the actual surrogate may be only $25,000 – $30,000, the addition of travel, medical, legal and clinic fees may bring the cost up to $100,000 to $200,000.

India is no longer an option for same-sex couples.  In 2012, Indian law changed and only heterosexual couples, married for at least two years, may hire surrogates in India.

There are numerous international treaties and agreements as well as federal and state Australian laws surrounding international surrogacy.  Speak to a family lawyer experienced in issues of surrogacy before starting the process.

The Current International Trend – Recognizing Same-Sex Marriages

Throughout the world, same-sex marriage is being legalized.  Eleven countries, including South Africa, Argentina, Belgium and Spain, now recognize same-sex marriages.  Nine states in the United States have legalized it.  Most recently, New Zealand legalized marriage between members of the same gender, a vote that was wrought with so much emotion the parliament literally erupted in song.  Some Parliament members in Australia are calling for marriages conducted in New Zealand to be recognised in Australia.

Australia is not quite there yet.  In 2009, the first bill for same-sex marriage was brought before the federal parliament in Australia.  That bill, and the one brought in February 2010, did not pass.  Most recently, in September 2012, two bills permitting same-sex marriage were defeated in both houses of the Parliament.  The Prime Minister, Julia Gillard, supported the bills but allowed members of the ALP a conscience vote.

It’s not clear when, but same-sex marriage in Australia is headed toward legalization.  Public opinion is strongly in favor.  In a recent poll taken by the Essential Report, 54% of Australians said they thought same-sex marriage should be allowed, with only 33% saying that it should not be permitted.  Interestingly, 62% of women polled supported it while only 46% of men said same-sex marriage should be legal.  Once legal recognition comes, the laws applying to heterosexual marriages will also apply to same-sex marriages.  For better or for worse….

De Facto and Same-Sex Couples and Property

De Facto and Same-Sex Couples and Property

Same-sex couples, like all de facto couples, may turn to the courts for orders on division of property, superannuation and maintenance if the relationship breaks down.  The rules applying to de facto couples are somewhat different, though, than those applying to legally married couples.

Can all De Facto couples obtain these orders?

No! Couples can receive these orders from the court only if the court is satisfied that the couple meets one of the following criteria:

• The relationship was at least two years long
• The couple has a child together
• One person made significant financial or nonfinancial contributions to the marital property or as a homemaker or as a parent and would be disadvantaged if the order was not granted
• The relationship was registered (in those states and territories where such registration is possible)

Does it matter where you live?

Yes! The laws apply to de facto couples who have a geographical connection with New South Wales, Victoria, Queensland, South Australia, Tasmania, the Australian Capital Territory, the Northern Territory, Norfolk Island, Christmas Island or the Cocos (Keeling) Islands.   Geographical connection means that at the time the relationship broke down, the couple lived in one of those states or territories.

A court may still give orders on property division, superannuation and maintenance if:

1. The couple lived in one of the above States or Territories during at least one third of their de facto relationship or;
2. The person applying to court for the order made substantial financial or nonfinancial contribution in one of the above States or Territories or;
3. One of the partners ordinarily lives in one of the above States or Territories at the time the application to court is made.

Does it matter when the relationship broke down?

Yes! The Commonwealth laws allowing de facto couples to divide property came into affect only on August 1, 2009 (and in South Australia only on July 1, 2010).  Therefore, in those states and territories where they apply, it’s only for couples whose relationship broke down after those dates.  If a relationship broke down before August 1, 2009 (or July 1, 2010 in South Australia), the laws of the particular State or Territory apply, unless both parties request in writing that the new laws apply.

One or both parties must apply for these orders within 2 years of the breakdown of the de facto relationship.

Can a couple make an arrangement on their own?

Definitely!  De facto couples can make their own arrangements regarding their property, including debts, assets, superannuation and spousal maintenance. 

Financial agreements are covered under Part VIIIA of the Family Law Act of 1975.  These agreements may refer to:

1. Property and financial resources and how they will be dealt with if the marriage breaks down or;
2. The maintenance (financial support) of either of the spouses during and/or after the marriage or;
3. Any other matter related to (1) or (2) above

This agreement can be made at any time during the relationship or after it breaks down (but you must apply for the orders within two years of the breakdown – see above)  and it can be formalized by the court by applying for a consent order.  Once a consent order is made, it has the validity and enforceability of a court order issued by a judge.  Both parties must apply for a consent court order for a property agreement by completing the Application for Consent Orders.  You do not need to go to court to apply for consent orders.

This financial agreement is only binding if:

1. both partners signed it and
2. both partners received independent legal advice about the agreement.   Partners are not allowed to receive advice from the same lawyer.

For further information on property division in the court see “Property and Money”.

Our Services

Mathews Family Law & Mediation Specialists practices exclusively in family law and mediation, offering full and ‘unbundled’ family law and mediation services.

Our accredited family law specialists and mediators are leading experts with the skill, experience and commitment to guide and support you through to the resolution of your dispute.

Separation

• We’ll provide you with the information you need to make an informed decision about separating
• Use our online fixed fee divorce service to obtain a divorce quickly, cheaply and with minimal fuss, no matter your location in Australia or overseas

Children and Parenting

• Parental responsibility
• Living arrangements (custody and access)
• Relocation
• Rights of grandparents and others

Child Support, Child Maintenance and Adult Child Maintenance

• Child Support Agency change of assessment process
• Payments for children and adult children
• Binding Child Support Agreements

Property and Financial Settlements

• Division of assets
• Complex property settlements
• Business, company and trust structures

Superannuation

• Superannuation flagging and splitting orders
• Superannuation Agreements

Maintenance

Payments made to a former partner following separation

Financial Agreements

• To determine how your assets will be divided in the event of relationship breakdown
• May be used to terminate maintenance rights
• ‘Pre-nuptial agreements’, during relationship and following separation agreements
• De facto (including same sex) and marriage relationships

Asset Protection including injunctions and restraining orders

• For personal protection
• To prevent a person from entering or remaining in the home or other areas
• To preserve assets including sale proceeds and business operations
• To preserve superannuation

International Family Law Disputes

• International relocation
• International child abduction
• Hague Convention
• Registration of overseas parenting orders 
• International child support
• Registration and enforcement of overseas child and spousal maintenance orders
• International service of legal documents

Intervention Orders

• Legal strategies to protect against family violence

De Facto and Same Sex Relationships

Our ‘Unbundled’ Family Law Services

• Unbundling breaks up the family lawyer’s role into a number of agreed limited legal services
• Unbundling empowers the client to select only those legal services that they require
• Unbundling can limit the lawyer’s involvement to a single issue, court or mediation process including:
  • Advice only
  • Research only
  • Drafting letters or court documents
  • Reviewing client prepared letters and court documents
  • Negotiation coaching in preparation for mediation or settlement meeting
  • Negotiating on behalf of the client
  • Attendance at mediation or court appearance on behalf of the client
  • Drafting settlement agreements
  • Providing independent legal advice for financial agreements
• Supported by a written ‘unbundled limited scope engagement agreement’ (costs agreement)
• Fixed fees by agreement

IAFL Global Comparison of LGBT Laws

The International Academy of Family Lawyers, of which Vanessa Mathews is a Fellow, has published a global survey of Lesbian Gay Bisexual Transgender laws (LGBT laws), the results of which can be found here https://www.iafl.com/media/5336/2019-iafl-lgbt-survey.pdf.

The IAFL LGBT Committee stated ‘Laws affecting LGBT people vary greatly by country or jurisdiction. There are now 28 jurisdictions that accept same sex marriage, however gay sex remains illegal in many jurisdictions with the death penalty still applying in 14.

The International Academy of Family Lawyers (“IAFL”) supports all efforts towards full equality of the LGBT community throughout the world and the end to rules that unfairly discriminate against such individuals and, in many countries, criminalize countless couples because of the ones they love. There remains a lot of work to be done.
The work done by some fellows of the IAFL is having a real impact and changing for the better the lives of LGBT people. The LGBT Committee of the IAFL commissioned this survey to capitalize on the knowledge and expertise of some members for the benefit of the IAFL as a whole and the LGBT community.

The individual submissions in this survey are the work of fellows of the IAFL who have kindly donated their time and expertise to answer the same questions as set out below. Each of the contributor’s names and contact details are included.

The LGBT Committee intends that this should be a living resource. We are asking those who have already kindly donated their time to keep us informed as laws change in their jurisdictions. We have detailed submissions from 46 jurisdictions, however, there remains a good number of jurisdictions not covered where the IAFL has fellows. If your jurisdiction is not covered and you feel able to complete a survey, please get in touch with the IAFL.’

Congratulations to the IAFL LGBT committee members for preparing such a comprehensive review of comparative laws.

Vanessa Mathews interviewed – Gay Marriage?

Vanessa Mathews was asked by The Age what impact she thought the legalization of gay marriage would have on family lawyers?
Click here to read the article http://www.theage.com.au/lifestyle/weddings/gay-marriage-expected-to-be-boost-for-wedding-business-20150601-ghebgd.html

Click here to read more information about same sex de facto relationships: https://mathewsfamilylaw-dev.10web.cloud/samesex/