Legal Rights of lesbian, gay, bisexual Couples 

lesbian, gay, bisexual couples have many of the same rights as married couples, including (in some cases) the right to a property settlement when the relationship ends

Federal law in Australia continues to evolve as it recognises and protects the legal rights of gay and lesbian couples. To varying degrees, Australian states and territories also protect gays and lesbians from discrimination. This article provides an overview of Australia’s changing laws.

Although same-sex couples cannot marry, federal law gives same-sex couples ineligible de facto relationships the opportunity to apply for financial orders when their relationships break down. Financial orders address property settlements and maintenance. The approach that Australian family law takes to de facto relationships is discussed in more detail below.

Overview of Lesbian, Gay, Bisexual Rights in Australia

Lesbian, gay, bisexual, and transgender (LGBT) rights in Australia have changed dramatically in the last few decades. Much of the initial progress toward recognition of LGBT relationships occurred at the state or territorial level. Some rights are still dependent on state law. The legal rights enjoyed by members of an LGBT relationship may, therefore, be altered when the couple moves from one state to another.

States have taken the lead in enacting anti-discrimination laws to prevent gender and sexuality from influencing employment and housing decisions. The absence of a federal anti-discrimination law means that protections are inconsistent from state-to-state. For example, NSW and Western Australia exempt religious groups from their anti-discrimination laws. Transgender individuals are the least likely to receive anti-discrimination protection.

State law governs issues such as a de facto partner’s right to inherit property when the other partner did not leave a will and the right to collect death benefits (such as worker’s compensation or claims following a fatal accident). Those laws vary, particularly regarding the length of time, the relationship must exist before it will be recognized.

State law also governs adoption and foster parenting. Some states and territories permit same-sex couples to adopt while others ban same-sex adoption. You should get legal advice if you need to determine how state law defines your rights.

The federal law was amended in 2004 to ban same-sex marriage. State laws that purport to recognise same-sex marriage have been invalidated by the High Court of Australia. States have taken the lead, however, in adopting domestic partnership laws (sometimes known as civil union or civil partnership laws) that provide some of the same benefits as marriage.

Most states and territories that have some form of domestic partnership law permit couples to register their relationship. South Australia, however, has no registry. Western Australia and the Northern Territory have no domestic partnership law.

The federal law was amended in 2008 to grant de facto relationships the same legal status as marriages with regard to federal laws governing:

  • Taxation
  • Superannuation
  • Health Insurance
  • Social Security
  • Aged care and child support
  • Immigration
  • Citizenship
  • Veterans’ Affairs

Federal divorce law identifies certain domestic partnerships as de facto relationships and, subject to eligibility requirements, grant the same property settlement and spousal maintenance rights to same-sex couples that it provides to married couples who divorce. Federal laws governing child custody and child support apply to all parents without regard to their gender or sexuality.

De Facto Relationships

Any time two unmarried people live together in an intimate relationship, they might consider themselves to be in a de facto relationship. Whether the law will recognize their relationship as a de facto relationship and grant the same legal rights a married couple would have after a relationship breakdown is a different question.

The Family Law Act 1975 recognizes that a de facto relationship can include same-sex couples, opposite-sex couples, and couples who are in multiple relationships. For example, a married person can be in a de facto relationship with someone who is not the person’s spouse.

Financial Order Eligibility

People who are in a de facto relationship that breaks down are eligible to apply for a financial order if they meet one of the following eligibility requirements:

  • The de facto relationship existed for at least two years; or
  • The partners in the de facto relationship had a child together; or
  • The de facto relationship is registered in a state or territory; or
  • One partner in the de facto relationship made substantial contributions to the acquisition or improvement of the partners’ property, or made substantial contributions to the other’s welfare, and failing to permit a financial cause to be initiated would be seriously unjust.

If your relationship breaks down, your entitlement to ask a court for a property settlement or other financial order depends upon whether the court will recognize the existence of the de facto relationship. The Family Law Act determines the existence of a de facto relationship by applying three tests. A couple will not be regarded as being in a de facto relationship unless:

  • They live in a participating state or territory. All states and territories other than Western Australia have satisfied that condition since 2009.
  • The couple separated after 1 March 2009 if they lived in Queensland, New South Wales, Victoria, ACT, Tasmania, or the Northern Territory, or after 1 July 2010 if they lived in South Australia.
  • The couple stayed together on a genuine domestic basis.
  • When there is a dispute about whether a de facto relationship exists, the question is usually whether the couple had a genuine domestic basis for their relationship.

Factors That Define a De Facto Relationship

The fact that one person in a relationship depends upon another does not transform the relationship into a de facto relationship. Rather, before the relationship broke down, the couple must have been together on a genuine domestic basis. That generally means living together as if they were husband and wife, although there is no strict test that must be passed.

To decide whether a couple stayed together on a genuine domestic basis, a court considers:

  • How long the couple lived together.
  •  If they did not live together, how much time they spent together.
  • Whether the relationship was intimate.
  • Whether they commingled funds in bank accounts.
  • Whether they owned property jointly.
  • Whether they shared the use of the property.
  • Whether they were financially independent of each other.
  • Whether they held themselves out to the public as being in a relationship.
  • The degree to which they shared their lives (e.g., by vacationing together or making long-term plans together).
  • If they had children together, whether they shared parenting responsibilities.
  • Whether they registered their relationship as a de facto relationship.

No single factor is necessary or decisive. Courts look at all the factors together to decide whether there was a genuine domestic basis for a de facto relationship.

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