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De Facto & Same Sex Relationships

Evolve Legal - De Facto & Same Sex Relationships

De Facto & Same Sex Relationships

Under the Family Law Act same-sex and heterosexual couples have the same entitlements under the law, including the right to marry. As a result, all relevant issues and proceedings regarding family law can be applied to same-sex couples.

Where a couple has a child via a surrogacy arrangement, the intended parents are required to file an application with the Court in their State seeking an order that the parentage of the child be transferred from the birth mother to the intended parents. Adoption is another means of recognising a child as one’s own, absent of any biological connection. Adoption orders are granted by the State Supreme Courts. In regards to property settlement procedures, the grounds which are required to be established to do so differ between married and de facto couples.

Ensure you observe the criteria Court has set out which establishes what constitutes a de facto relationship before engaging in property proceedings.

Same sex relationships

Since the definition of “marriage” under the Family Law Act 1975 (Cth) was changed in 2017, same sex couples can marry and have the same entitlements under the law as heterosexual couples. Same sex couples may be married or de facto (provided they meet the relevant considerations which would indicate a de facto relationship exists). Please see our separate article for further information about the existence of a de-facto relationship.

The same issues arise for same sex couples as those in heterosexual relationships. These include considering Financial Agreements (also known as ‘pre-nups’) prior to or during the relationship, property settlement in the unfortunate event of separation, the parenting arrangements for children of the same sex relationship and other matters such as child support and spousal maintenance. For further information about Financial Agreements and property settlements, please see our separate article for further information.

Same sex couples may have children together by way of adoption, surrogacy, or artificial reproductive technology like IVF.

The Family Law Act recognises that same sex couples who adopt children or have children by way of IVF, are the legal parents of those children. Additionally, children born using the donation of sperm from a male outside of the relationship, with the partner of the birth mother ‘consent, is recognised as a child of both the birth mother and her partner, despite there being no biological relationship between the child and the partner.

However, this recognition does not yet extend to children born by surrogacy arrangements although the Act does allow interested parties (such as parents of a child born via a surrogacy agreement) to apply for parenting orders for that child, in the event of separation.

Surrogacy

In some instances, couples may elect to have a child via a surrogacy arrangement.
Surrogacy is a type of assisted reproduction which sees a woman who is called the surrogate or birth mother carry a pregnancy for the benefit of another person or couple. The child born from a surrogacy arrangement is returned to the intended parents who can then be recognised as the legal parents of that child.

The legal framework which governs surrogacy is different in each state in Australia so it is important that you have regard to the rules in your State and speak to a lawyer who practices in your State.

When entering into a surrogacy arrangement, you must enter into an agreement which sets out the terms of the surrogacy arrangement. This agreement must be:

  1. 1.2. Entered into prior to the conception of the child;
  2. 1.3. In writing; and
  3. 1.4. Signed by all of the parties involved in the arrangement.
    Other conditions of a surrogacy arrangement include:
  4. 1.5. The arrangement must be altruistic only – the birthing mother cannot profit from the arrangement.
  5. 1.6. Only the birth mother’s reasonable surrogacy costs can be met by the intended parents. These costs may include:
    1. medical costs for the birth mother
    2. costs, including medical, for your child
    3. certain health, disability or life insurance premiums
    4. certain counselling and counsellor’s report costs
    5. legal costs
    6. the birth mother’s loss of earnings, in certain circumstances
    7. other reasonable costs associated with the surrogacy arrangement or the parentage order.
  6. 1.7. Both parents including the birth mother and the intended parents must obtain counselling and independent legal advice with respect to the agreement.

Once a child is born by way of surrogacy, the intended parents are required to file an application with the Children’s Court in their particular State seeking an order that the parentage of the child be transferred from the birth mother to the intended parents.
If you are considering entering into a surrogacy arrangement, we invite you to contact one of our expert family lawyers to discuss the pathway forward for you to ensure your arrangement is legally compliant which will avoid any issues seeking parentage in the future.

Adoption

Adoption is the process whereby a child becomes recognised as a child of a person or couple, absent of any biological connection. In doing so, the parents become the legal parents of that child and adopt the rights and obligations of a biological parent. Adoption also has the effect of removing the legal rights of the birth parents of that particular child.

In some families, adoption arises when people seek to adopt someone already within their family unit such as a step child. In other instances, families choose to bring a new child into their family with whom they do not have an existing relationship such as an overseas adoption or adoption of an orphan.


It is important not to confuse an adoption order with a parenting order. A parenting order differs from an adoption order because instead of deferring complete parentage, it instead affords people or couples particular responsibilities in relation to children with whom there is an interested relationship.

The Federal Circuit and Family Court of Australia are responsible for granting adoption orders. In Order for the Court to be satisfied that an adoption order ought to be granted, the following criteria must be met:

  1. It must be the case that a parenting order would not adequately meet the best interests of the child, meaning an adoption order is necessary;
  2. Exceptional circumstances for the child must exist such as their biological parent has died or their biological parent has not been involved in the child’s life.
  3. An order for adoption would better provide for the welfare and best interests of the child as compared to a parenting orde

If you are considering seeking an adoption order, it is important to understand the options available to you and the process you will experience. If you are thinking about adoption, we invite you to contact one of our expert family lawyers to discuss your specific circumstances to ensure you receive tailored advice about your options.

De facto relationships

De facto relationships describe a couple, whether of the same sex or different, who are not married but live together. You will have the same rights as a married couple if you register your de facto relationship or meet the time requirement of 2 years. Some de facto relationships can be difficult to show in which case a Court may consider further factors to determine de facto status and subsequent entitlements.


Couples in de facto relationships face the same issues as married couples including considerations about Financial Agreements (also known as ‘pre-nups’) prior to or during the relationship, property settlement in the unfortunate event of separation, the parenting arrangements for children of the de facto relationship and other matters such as child support and spousal maintenance.

De facto couples may be heterosexual relationships or same sex relationships.

If you are looking to commence property settlement proceedings, the grounds which are required to be established to do so differ between married and de facto couples. The existence of a marriage is sufficient to commence property settlement proceedings however this is not the same for de facto couples.

If your de facto relationship has broken down and you are considering commencing property/financial proceedings, it is important that you have regard to the criteria the Court has set out which establishes a de facto relationship. These include, although are not limited to:

  1. 1.11. the duration of the relationship;
  2. 1.12. the nature and extent of their common residence;
  3. 1.13. whether a sexual relationship exists;
  4. 1.14. the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
  5. 1.15. the ownership, use and acquisition of their property;
  6. 1.16. the degree of mutual commitment to a shared life;
  7. 1.17. whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
  8. 1.18. the care and support of children; and
  9. 1.19. the reputation and public aspects of the relationship.

De-facto couples must commence property settlement proceedings within two years of the breakdown of their relationship, unless extraordinary circumstances exist and the Court grants permission to commence proceedings outside of this timeframe.

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