The law treats same sex de facto couples and married couples in the same way that it treats heterosexual de facto couples and married couples in relation to the division of the property of a relationship. A party wishing to make an application to the Family Court or to the Federal Circuit Court seeking Property Orders must have been in a de facto relationship with the other party for at least 2 years unless there is a child or children of the relationship in which case the two year rule does not apply and an Application can be made seeking Property Orders by a party to a de facto relationship that broke down after less than two years. A party to a marriage can make an application for property orders even if the marriage is of less than two years duration.
Under the Family Law Act 1975 the Courts have a wide discretion in determining an appropriate property settlement and take into account the following in exercising that discretion:
- Establish whether it is just and equitable to make an alteration of the parties’ property interests;
- Identify and value the property of the parties;
- Assess the financial and non-financial contributions of the parties towards the property;
- Assess the contributions made by the parties towards the welfare of the family;
- Assess whether any section 75(2) factors exist that would justify a percentage adjustment in favour of one of the parties. Such factors include the parties’ health and income/income earning capacity and whether they have caring responsibilities for a child/children;
- Assess whether the proposed settlement is just and equitable in all of the circumstances.
Under the Family Law Act 1975 a non-biological mother in a same-sex relationship can be legally recognised as a parent, provided that:
- The biological mother and her partner were living together as a couple on a genuine domestic basis when the artificial conception procedure took place; and
- The biological mother’s consented to the artificial conception procedure.
The biological mother’s partner can be recorded on the birth certificate of the donor conceived child as a parent. The sperm donor can also be recorded on the child’s birth certificate but will be recorded as the Sperm Donor, not as a parent.
In parenting disputes the Court must consider the best interests of the child as the paramount consideration irrespective of whether the parents were in a same-sex or opposite sex relationship.
At Farrell Family Lawyers we are experienced in providing advice to same-sex clients about their legal rights in relation to same sex relationships and all family law issues and invite you to contact us to discuss any questions that you may have.