De Facto & Same Sex Relationships

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.

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.