Same-Sex & LGBTIQ+ Relationships

Ending LGBTIQ+ and Same-Sex Marriages

Under the Marriage Act, you have the same rights and responsibilities as a heterosexual couple seeking a divorce. This means you must show that you have been separated for one year, even if you live under the same roof.

After you have applied for a divorce, any property settlement matters will need to be initiated within 12 months of your divorce becoming final, usually one month after your divorce hearing.

Are same-sex couples covered by the Family Law Act 1975?

Same-sex and LGBTIQ+ relationships are considered with a similar legal perspective to heterosexual relationships in Victoria. The sexual orientation or gender identity of the parties involved is not a factor on which the legal decisions are made; it's the relationship's legal status.

The Family Law Act differentiates between an LGBTIQ+ or same-sex marriage and a de facto relationship when intimate relationships end; in the same way, a heterosexual relationship would be seen as having a de facto or married status. Child support can be one of a few areas where challenges may arise, which we will look at further down the page.

De Facto Relationships

If you are not legally married to your partner and have been living together on a genuine domestic basis, you will be considered to have a de facto relationship. Factors such as the duration you have lived together, the existence of a sexual relationship, having children together, dependence or interdependence and shared financial commitments will define how the court views your relationship.

A de facto relationship can exist even if one party is legally married to someone else or if either party is involved in more than one de facto relationship.

Parenting Arrangements

For same-sex and LGBTIQ+ couples, parenting arrangements are approached with a gender-neutral lens. The Family Law Act facilitates parenting agreements and orders that prioritise the child's best interests, irrespective of the gender or sexual orientation of the parents. LGBTIQ+ couples share identical entitlements to parenting arrangements, apart from some potential issues arising in some instances for those seeking child support.

Property Settlement

Similarly, LGBTIQ+ couples share the same property settlement entitlements as heterosexual couples. Binding Financial Agreements outlining asset division in case of a relationship breakdown are available to same-sex couples at any point during their marriage. Property settlement matters are resolved with the same legal considerations, ensuring a fair and equitable distribution of assets.

What about child support?

Separated same-sex and LGBTIQ+ relationships are eligible for child support in Australia, but there are some considerations that need to be taken into account. The Child Support (Assessment) Act 1989 governs child support matters and does not discriminate based on the gender or sexual orientation of the parents.

The Act defines eligibility for child support based on the status of being a birth parent or an adoptive parent, allowing separated same-sex and LGBTIQ+ couples to seek child support arrangements. The Child Support (Assessment) Act 1989 defines a 'parent' as either a birth parent or registered parent of the child under section 60H of the Family Law Act 1975 or an adoptive parent. Unfortunately, this definition limits the recognition of both parents in situations where a child is born to same-sex partners via surrogacy.

For instance, the Act does not allow a birth parent to seek child support from the co-parent, even if a parenting order is in place. Conversely, a co-parent may seek child support from the birth parent if they are considered an 'eligible carer,' meeting specific criteria related to daily care responsibilities.

If individuals in a separated same-sex or LGBTIQ+ relationship are neither birth nor adoptive parents, the legal recognition and entitlement to child support may become more complex. In Australia, the Child Support (Assessment) Act 1989 typically defines a 'parent' as either a birth parent or an adoptive parent.

If the individuals in the relationship do not fall into either category, they may face challenges in seeking child support through the formal channels outlined in the Child Support Act. In such cases, they should seek legal advice to explore alternative avenues or arrangements, as family law can be nuanced and subject to interpretation based on specific circumstances.

Spousal Maintenance for Same-Sex & LGBTIQ+ Relationships

In Victoria, spousal maintenance for same-sex and LGBTQI couples follows family law principles that aim to address financial support post-separation. Regardless of gender or sexual orientation, the court may order spousal maintenance if one partner faces economic hardship due to the relationship breakdown. Factors such as financial need, earning capacity, and relationship duration are considered. Seeking legal advice is crucial to navigating the specific circumstances and ensuring a fair resolution in spousal maintenance matters.

Same-Sex & LGBTIQ+ Relationships Domestic and Family Violence

Domestic and family violence is a pervasive issue, including in same-sex relationships. In the context of same-sex domestic and family violence, it's essential to recognise the diverse nature of relationships, encompassing same-sex partnerships, marriages, and couple relationships.

Domestic and family violence in LGBTIQ+ and same-sex relationships is thought to be widely underreported, with fear of discrimination a factor that may deter some individuals from reporting abuse. Australian law sees all violence between two persons in a relationship as family violence, regardless of sexuality or gender identity.

Being in a same-sex couple relationship or having an LGBTIQ+ or same-sex partner does not change the law in this area. If you are experiencing emotional, financial, sexual or physical abuse, you (and any children affected) can apply for a Family Violence Intervention Order.

Ready to confidently navigate arrangements after divorce or separation?

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