LGBTQIA+ Family Law in Australia: Unique Challenges and Solutions

The Family Law Act 1975 is a constantly evolving legal document, namely because it’s essential that the Act stays reflective of Australian families. As LGBTQIA+ contexts become increasingly relevant to Australian families, policymakers and the general public ultimately decided that the Family Law Act 1975 should include legal infrastructure to support the rights of rainbow families nationwide.

The Marriage Amendment (Definition and Religious Freedoms) Act 2017 legalised same-sex marriage nationwide in Australia, ensuring LGBTQIA+ families have access to all Family Law processes, including divorce and separation, as well as property and financial settlements.

Although all families are supported by the Family Law Act, it’s important to keep in mind that LGBTQIA+ families still experience unique challenges relating to Family Law matters. This includes issues relating to legal parentage disputes (i.e. for cases of children born via sperm donors/assisted reproductive technologies, etc.), child support and custody arrangements, and combating a lack of historical references relating to LGBTQIA+ Family Law matters plus accounting for existing systemic biases and discrimination issues.

Below, our Family Law Lawyers at Oxford Partners Lawyers will be outlining some of the unique challenges and solutions relating to LGBTQIA+ Family Law in Australia, drawing from their years of experience in providing empathy-driven Family Law services to deliver key insights for rainbow families across Melbourne.

LGBTQIA+ Marriages & Relationships Under Australian Family Law

As mentioned above, same-sex marriage was legalised in Australia as of December 2017 with the enactment of the Marriage Amendment Act 2017. The enactment of the Act ensures that both married and de facto same-sex couples have the same rights and responsibilities as heterosexual relationships in Australia.

Are overseas same-sex marriages recognised in Australia?

When the Marriage Amendment Act 2017 was first enacted, it automatically recognised overseas same-sex marriages. You can ensure your same-sex marriage is legally recognised in Australia by providing the Registry of Births, Deaths and Marriages with either:

• an original or certified copy of your marriage certificate, and/or
• A record or entry of marriage issued by an appropriate authority from the country where the marriage was originally registered.

Does Australia recognise polyamorous relationships?

Although polyamorous de facto relationships are legally permissible in Australia, polygamy (i.e. an individual being married to multiple partners) is not. As such, marriage in Australia is defined as ‘the union of two people to the exclusion of all others, voluntarily entered into for life’.

Divorce & Separation for LGBTQIA+ Couples

As same-sex couples have the same rights and responsibilities as heterosexual couples under Australian Family Law, the same laws and processes surround divorce and separation agreements for LGBTQIA+ families.

This means that a married same-sex couple must be legally separated for at least 12 months before they’re eligible to file an application for divorce. Divorce is also on a no-fault basis, as per the Family Law Act 1975. 

The process for separation in LGBTQIA+ relationships is always equally straightforward for both married and de facto couples, requiring only the decision to end the relationship, and proceeding actions that make it clear the relationship has ended (i.e. changes to daily life, communication, finances, etc.).

Can separated same-sex couples continue to live together?

Yes, same-sex couples can still be separated but living under one roof. The Family Law Act 1975 accounts for separated couples who choose to continue staying under one roof for a variety of reasons, ranging from ensuring ongoing financial support following a separation, to supporting parenting agreements and the needs of any children/shared dependents.

Property & Financial Settlements for LGBTQIA+ Families

Both married and de facto same-sex couples have access to the same rights for property settlements, parenting matters, spousal maintenance, and all other Family Law matters relating to heterosexual couples. 

De facto same-sex couples must still, however, provide evidence to support their relationship before commencing with any settlement proceedings.

How to provide evidence of de facto relationship for same-sex couples

For same-sex de facto couples looking to commence settlement proceedings, evidence to support the legitimacy of their relationship can include:

• Financial evidence like joint bank accounts/mortgage or lease agreements, etc.
• Social evidence like photos, travel documents, social media posts
• Personal statements outlining a personal commitment (incl. statutory declarations from friends and family members)

Learn more about how to know if you’re legally in a de facto relationship here, and check out our additional blog to understand your legal rights within a de facto relationship for even more insights.

Parenting & Children’s Matters for Rainbow Families

For rainbow families with children, understanding your individual rights as parents is essential when navigating parenting and children’s matters. Under the Child Support (Assessment) Act 1989, a ‘parent’ is still only defined as either: a) when used in relation to a child who has been adopted (an adoptive parent of the child); and b) when used in relation to a child born because of the carrying out of an artificial conception procedure-a person who is a parent of the child under section 60B of the Family Law Act 1975. This means that in cases of adoption where both parents have signed adoption documents, both parents are legally recognised as parents. However, in cases where only one parent has provided genetic material to be used in assisted reproduction and surrogacy arrangements like IVF or intrauterine insemination, only the parentage of the party that has provided genetic material is legally recognised under Australian Family Law.

As this definition of a ‘parent’ under Australian Family Law is also reflected in the Child Support (Assessment) Act 1989, this means that a birth parent cannot legally seek child support from a gay or lesbian co-parent, even in cases where a parenting order has been put into place.

What actions can you take if you are not recognised as the legal parent of a child resulting from a same-sex union?

If you have not been recognised as the legal parent of a child resulting from your same-sex union, you can still apply to the Federal Circuit and Family Court for a parenting order to formally recognise you as a ‘person concerned with the care, welfare or development of the child’. 

This parenting order can aid in ensuring you maintain a voice in child custody matters, supporting you in having a say in the living arrangements of the child, parenting responsibilities of all recognised parents and guardians, child maintenance agreements, and all other relevant factors relating to the care, welfare or development of the child.

These matters can be resolved in Family Court or via family mediation sessions following the granting of your parenting order.

Discrimination & Legal Protections for LGBTQIA+ Families

As the legal recognition of same-sex marriage is still relatively new in Australia, few families are fully aware of their rights, which can naturally inhibit access to Family Law resources. The lack of historical Court evidence relating to LGBTQIA+ cases also means that LGBTQIA+ Family Law matters don’t have access to the same volume of legal precedents as heterosexual couples.

Family Lawyers and Court officials in Australia do take this lack of directly relevant historical precedents into account, often drawing on insights from other specialists like medical professionals for instance, when evaluating cases relating to assisted reproduction and surrogacy, and other parenting and children’s matters.

Unfortunately, ongoing systemic biases towards LGBTQIA+ individuals in Australia can also result in fears of discrimination or judgement from law enforcement officials, medical staff, and other professionals. This further inhibits LGBTQIA+ individuals from reporting incidents of domestic or family violence.

What legal protections are available to LGBTQIA+ individuals under Australian Law?

In Australia, the Sex Discrimination Act 1984 was enacted to provide protection against unfair treatments based on sexual orientation, gender identity, or intersex status. The Sex Discrimination Act 1984 also prohibits discriminatory practices like denying services to LGBTQIA+ individuals, misgendering individuals, or pressuring individuals to alter their gender identity in any way. 

If you believe that you have experienced any discrimination as an LGBTQIA+ individual either by an employer or even by law enforcement and emergency service providers when reporting incidents of family violence, you can consult with a Human Rights and Discrimination Lawyer, and/or file a complaint with the Australian Human Rights Commission.

And in cases of family violence or domestic abuse, our legal team at Oxford Partners Lawyers urges any affected LGBTQIA+ individuals to consult with a Family Lawyer about securing an intervention order.

Consult with Oxford Partners Lawyers for LGBTQIA+ Family Law Matters

With decades of combined experience offering empathy-driven Family Law services, our legal team at Oxford Partners Lawyers possesses all the necessary contextual knowledge and competencies to handle LGBTQIA+ Family Law matters with the utmost respect and professionalism.

If you’d like to learn more about our tailored LGBTQIA+ Family Law services, don’t hesitate to get in touch with our team by calling (03) 9670 7577 to speak directly with a member of our team over the phone, or to book your free 30-minute preliminary consultation.

Want to learn more about your rights under Australian Family Law? Check out our legal advice and news blog for more information on Family Law updates, as well as more insights into complex Family Law matters like rainbow families, navigating de facto relationships, and more.