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Same Sex Relationships

The right for couples to marry in Australia is no longer constrained by sex or gender. Same-sex marriages that were solemnised and are valid in a foreign jurisdiction, subject to some exceptions, may also automatically be considered legal in Australia. We can help you determine the legal status of your marriage or relationship if you are uncertain.

Because the right for couples to marry is no longer restricted by sex or gender, same sex married couples are now subject to Australia’s marriage and divorce regime and have the same rights and entitlements when it comes to certain laws governing matters such as taxation, superannuation, health care, social security, child support and family assistance.

In the event of separation, same sex couples can apply for a property settlement, child support assessments, and parenting orders. They can also enter into prenuptial agreements prior to moving in together or getting married.

Same sex de facto relationships

People in a same-sex de facto relationship are able to seek parenting and property settlement orders from the Federal Circuit and Family Court of Australia. Under the Family Law Act persons are in a de facto relationship if:

  • they are not legally married to each other; and
  • they are not related by family; and
  • having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

There is no set formula used to prove that a couple is living a de facto relationship and a range of factors will be considered.

The Family Law Act allows parties in a de facto relationship to make an application to the court for orders to be made about how their assets and liabilities should be divided following a breakup. Generally, the couple must have been living in a de facto relationship for two years, although there are some exceptions to this.

Protecting your assets

The recognition of a de facto relationship, whether same sex or heterosexual, is relevant when it comes to your right to access certain remedies under family law legislation. Being in a de facto relationship can also affect what will happen to your estate if you die intestate (i.e. without making a valid will).

We can help you determine the legal status of your domestic relationship and provide guidance on estate planning or how to protect your assets in the event of separation. If you have separated from your partner, we can also help you to formalise a property settlement and parenting arrangements for any children of your relationship.

If you need any assistance, contact one of our lawyers at [email protected] or call 1300 704 064 for a no-obligation discussion and expert legal advice.