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Australia’s laws in relation to lesbian, gay, bisexual, trans, intersex and queer (LGBTIQ or LGBTI+) relationships have developed in recent decades, culminating in the legalisation of same-sex marriage on 9 December 2017. As a result, LGBTIQ couples can now enjoy the same treatment under the law as heterosexual couples.
When it comes to Family Law, LGBTIQ couples encounter many of the same issues as heterosexual couples (and some unique ones). As with all Family Law matters, mediation is an extremely valuable avenue for resolving disputes, as it provides a cost-effective method for reaching resolution.
Taking a global perspective, Australia can be considered relatively progressive in its laws relating to LGBTIQ relationships. Yet, if the results of the 2017 Same Sex Marriage Plebiscite are anything to go by, then Australian law and policy (at least, prior to the legalisation of same sex marriage) was lagging a long way behind public attitudes.
Like most countries, Australia’s historical treatment of LGBTIQ people has been shameful. With Australian law derived from English law, same-sex relationships were illegal at least from the time when the British arrived in Australia. After Federation in 1901, the states and territories of Australia enacted laws that were similarly derived from English law, including the outlawing of homosexuality. As a result, the LGBTIQ community was forced to endure years of persecution and discrimination. Same sex marriage (or gay marriage) was still a long way away.
Over time, these Australian laws were gradually softened. One by one, states and territories started reducing the penalties for homosexual acts, and then decriminalising homosexuality altogether.
In 2009, the Family Law Act was amended such that parties who could prove they were in an eligible de facto relationship would have many of the same rights (including property rights in the case of separation) as married couples. This recognition of de facto relationships extended to same sex couples.
On 9 December 2017, same sex marriage was legalised in Australia, opening the way for LGBT couples to marry and divorce on the same terms as their heterosexual counterparts.
In 1961, the Marriage Act (which is Commonwealth legislation) was enacted. Marriage had previously been handled separately by the states and territories, but this legislation created a uniform set of laws in this area.
Notably, at the time that it was enacted, there was an attempt to include a definition of marriage as “the voluntary union of one man and one woman for life to the exclusion of all others”, but this was rejected in a 40-8 vote. Accordingly, the original version of the Marriage Act did not actually expressly prohibit same sex marriage, instead leaving it to the common law to determine the definition of marriage. This would allow that definition to change over time, if public sentiment evolved. However, in 2004, the Howard Government amended the Marriage Act, to explicitly prohibit homosexual couples from marrying.
Between 2004 and 2017, there were 22 attempts to reverse this, but these were rejected by Parliament. Eventually on 9 December 2017, after the overwhelming public “Yes” vote in response to the same-sex marriage vote, the Turnbull Government amended the Marriage Act, and Australia had finally achieved marriage equality.
As a consequence, LGBTI+ couples in Australia now have the same rights as heterosexual couples in relation to de facto relationships, marriage, separation and divorce.
If a couple wants to marry in Australia, they need to sign a Notice of Intended Marriage form, at least one month before their wedding. However, some LGBTIQ couples actually obtained exemptions to this requirement, and the first Australian gay marriages occurred in the days and weeks that followed the enactment of Australia’s new gay marriage laws. The first Australian same-sex divorce was filed just days after the legislation came into force. This involved a couple who had married overseas but due to a legal technicality had been unable to divorce in that country or in Australia until the same-sex marriage legislation was enacted.
Prior to the passing of 2017 same sex marriage laws, LGTBI couples had equal rights to heterosexual couples in relation to de facto relationships, since the 2009 amendments to the Family Law Act entitle the parties in relationships that qualify as a de facto relationship under that Act to most of the same rights as married couples.
This situation did not change after Australia’s same sex marriage postal survey. Gay couples, lesbian couples or other LGBT couples who do not want to get married may still be legally recognised as de facto couples, and if so, they may still access those same rights under the de facto legislation.
On paper, this suggests that the difference between married couples and de facto couples (as far as the law is concerned) is largely symbolic. In practice, this is not really the case. There are still some significant differences between a marriage and a de facto relationship.
Proving a marriage is a black-and-white issue. And as soon as a couple is married, they obtain various rights such as property rights on separation (even if they only met each other the previous week). In the event of divorce, the parties to the marriage will have rights in relation to property distribution and spousal maintenance, irrespective of whether it is a marriage between heterosexual parties or a marriage between LGBTIQ parties.
In contrast, proving a de facto relationship is often more difficult. The question of whether or not a de facto relationship exists will depend on the facts of the particular relationship. Therefore, in order for either party to be eligible for spousal maintenance or a property settlement, they will first have to overcome the hurdle of proving the existence of their relationship. This may require them to produce evidence about their living arrangements, commitment to a shared life, sexual relationship, shared finances, shared property, how they appear in public, and child-care arrangements (if applicable).
This can be made more difficult if one party to the relationship is disputing the existence of the relationship (for example, to avoid paying spousal maintenance). In the event that one party has deceased or has suffered a major injury, then the situation can be particularly complicated for the other party. For example, if one partner is seriously injured and healthcare decisions need to be made on his or her behalf (and if no enduring guardianship has been created), then the healthy partner will have difficulty trying to show that they are the person that should be making the decisions. Or in the event that one partner passes away, then the surviving partner may face similar difficulties in accessing pensions, bereavement payments or superannuation. All of these matters can be further complicated by medical staff or hospital staff who do not understand the nuances of the law in relation to de facto relationships. A marriage certificate is much easier for them to understand.
In order for a court to make an order for property settlement in relation to a de facto relationship, at least one of the following will have to be proven:
This is significantly more onerous than the situation for married couples. If a couple is married, then the rights to property settlement, to spousal maintenance, and to make medical decisions on one another’s behalf (if necessary) follow automatically.
If parties to the relationship cannot reach a resolution out of court (for example, through family dispute resolution), then they will need to apply to the court for a property settlement. The same process applies whether the couple is a heterosexual couple or an LGBTIQ couple, and whether they are married or de facto (except for the challenges with proving a de facto relationship, discussed above).
In determining a property settlement, the court will take a number of factors into consideration, including:
Same sex couples can now adopt children in all states and territories of Australia. This applies whether the couple is married or in a de facto relationship. In addition, a single LGBTIQ person is permitted to adopt in all states of Australia, although South Australia and the Northern Territory are more restrictive in terms of the circumstances in which it is permitted.
All states of Australia permit altruistic surrogacy, but prohibit commercial surrogacy, except the Northern Territory (where the law does not actually address surrogacy at all). Altruistic surrogacy is where the surrogate is not paid anything in addition to their surrogacy-related expenses. Commercial surrogacy is where the surrogate is paid something in addition to their expenses. In Western Australia, heterosexual couples are permitted to engage in altruistic surrogacy, but same-sex couples and singles are not. This restriction does not apply in the remaining states. However, Western Australia’s laws are under review and may be amended to permit surrogacy by same-sex couples in the near future.
When an adoption order is finalised, one or both of the child’s biological parents stop being the child’s legal parent, and the adoptive parent(s) become the legal parent(s) of the child. The adoptive parent(s) take on all of the legal rights and responsibilities that parents ordinarily have towards their children.
For surrogate parenting arrangements, the laws vary throughout the states and territories of Australia. However, challenges are common when it comes to establishing either of the surrogate parents as legal parents of the child. In some cases, one or both of the surrogate parents (such as the partners in the same sex relationship, who have sought to create a family with the child) may not be recognised as the legal parent of the child.
This can raise a number of issues. It can present challenges for the surrogate parents in applying for passports, enrolling the child in school, opening bank accounts, accessing medical treatment or Medicare benefits, or making medical decisions. If the biological parents are not Australian citizens, then this may present challenges in obtaining Australian citizenship for the child. In the event that the surrogate parents pass away, then the child may not be entitled to any inheritance, or any superannuation or workers compensation payments. In day-to-day life, the surrogate parents may encounter a number of routine challenges in doing things for the child that require parental permission. The surrogate parent may also be denied certain financial benefits such as parental leave or childcare-related social security benefits.
In the case of a lesbian couple, where one of the partners actually gives birth to the child, then she will likely be considered a legal parent of the child. However, the other partner may not.
In the case of a gay couple, if one of the partners is the biological father of the child, then he may be denied status as a legal parent of the child, as he may be considered a “sperm donor”. The birth mother of the child will likely be considered a legal parent though. The other gay partner may be considered a ‘co-parent’ with fewer parenting rights than a legal parent.
In order to work around these issues, some couples seek to adopt the child. Once an adoption is finalised (as discussed above), the adoptive parents become the legal parents of the child, and the biological parents (if different from the adoptive parents) will stop being the legal parents of the child.
In addition, if one of the parents is already a legal parent of the child (such as in the case of a lesbian mother who gives birth to the child) and is married to the other intended parent, then the other intended parent may be able to obtain legal parental status as a step-parent. However, a person can only qualify as a step-parent if they are married to a legal parent. Therefore, this is not available for de facto couples, and was a significant source of difficulty for LBBTIQ couples prior to the legalisation of same sex marriage in Australia.
So, the difficulty may be in qualifying as a legal parent of the child. Once that is achieved, it is smoother sailing, and various parental rights and responsibilities will follow. This will apply regardless of whether the parent is actually a biological parent or not, and whether they are heterosexual or LGBTIQ.
Under the Family Law Act, there is a presumption that if a person is recorded as a parent on a child’s birth certificate, then that person is the child’s legal parent. Therefore, it is preferable for both prospective parents to be recorded on the birth certificate.
If a person is not recorded as a parent on the birth certificate, this is not necessarily the end of the story. There may be avenues available (depending on the relevant state or territory laws) that enable that person to obtain recognition as a legal parent.
When a person is recognised as the legal parent, this will in turn enable the parent to do a number of things, including:
Clearly the laws in this area are nuanced and vary from one state or territory to the next. Given the variety of forms that a contemporary Australian family can take, any one case may be quite different from another, and it is not possible for us to address all possible scenarios here. In order to determine the best course of action, it will usually be necessary for a lawyer to have a close look at the circumstances of your particular case.
However, several things remain constant throughout the vast majority of cases that we see. The more proactive you are about dealing with your situation (in terms of seeking advice early, doing the uncomfortable tasks, and getting the ball rolling towards resolving the disputes), the less painful the process will be, and the less of a toll it will take on your relationships. With this in mind, mediation is an extremely valuable process.
Mediation is a structured process for dispute resolution, where a third party (the mediator or Family Dispute Resolution Practitioner) helps the parties to the dispute to address their issues and negotiate a resolution.
Mediation has a number of advantages over litigation. It is cheaper, less stressful, and gives the parties control over the outcome. Rather than having a judge impose a decision on the parties, the parties both provide input and formulate their own solution. In this way, and with the guidance of the mediator, parties are often able to develop “win-win” solutions.
In some Family Law matters (including matters that involve children), Australian law now requires the parties to the dispute to make a genuine attempt at mediation before they are able to take the matter to court. If mediation fails to generate a resolution, then the matter may be taken to court.
Even if children are not involved, LGBTIQ couples who are in dispute about property and financial matters should strongly consider mediating their dispute as a way to reduce costs and create solutions that are best for both parties.
Not only does mediation save money by steering disputes away from litigation, but in many cases it also allows parties to emerge from the dispute having maintained positive, respectful and workable relationships with one another, even if the romantic relationship has come to an end.
At Family Mediation Brisbane, as a rainbow-friendly business we are experienced in assisting LGBTIQ couples and former spouses in resolving their disagreements around children’s matters and property and financial matters.
More Information on Mediation & Family Dispute Resolution
- Family Dispute Resolution
- Parenting Plans
- Financial Agreements
- Child-Inclusive Mediation
- Section 60I Certificates
- Child Support
- Child Support Calculator
- De Facto Relationships & Separation
- Divorce & Mediation
- Grandparents & Mediation for Grandchildren
- Parenting Plan & Draft Consent Orders for Children
- Property Settlement at Mediation
- Mediation & Domestic Violence
- Relocation & Overseas Travel with a Child
- Going to the Family Court versus Mediation
- Family Dispute Resolution & Mediation
- Child Support & Mediation
DISCLAIMER: The information contained on this website is for general guidance only. No person should act or refrain from acting on the basis of this information. Professional legal advice should be sought based upon your particular circumstances, because laws and regulations undergo frequent changes.