Same-sex couples have gained new rights in Australia during the past two decades. Some of those rights apply across Australia while others depend upon the state in which the couple lives.
Federal law, applicable in all states, recognizes that same-sex couples have the same rights as unmarried opposite-sex couples with regard to federal benefits. A federal law passed in 2008 ended discrimination against same-sex couples and their children that had been enshrined in various statutes governing such areas as:
All states except Western Australia have agreed to accept exclusive federal jurisdiction over divorce cases. Most states have also agreed to be bound by federal law’s application of family law to “de facto” same-sex relationships. Those agreements took effect in 2009 and 2010. State property law continues to apply if a same-sex relationship broke down before the date on which the state agreed to be governed by federal law.
Federal law allows the partners in a de facto relationship to seek a property settlement from a Family Law Court. Federal law recognizes the existence of a de facto relationship if the couple lived together on a genuine domestic basis and at least one of the following is true:
In some states, a same-sex couple can register their de facto relationship. Those states are:
De facto couples in South Australia can prepare a Domestic Partnership Agreement that confers the same benefits as registration.
Registration is not necessary to establish the existence of a de facto relationship under the federal Family Law Act, but registration assures that a Family Law Court will recognize that a de facto relationship exists.
Four states permit same-sex couples to enter into a civil union. They are:
A civil union is meant to confer the benefits of a marriage. Civil unions are recognized within the state in which they are made. They are generally not recognized in other states.
Binding financial agreements allow same-sex couples to determine how property will be owned and used during a relationship and how it will be divided after a relationship breaks down. The binding financial agreements that apply to same-sex couples who are living together or planning to live together are called “cohabitation agreements.” A same-sex couple that is separating can enter into a “separation agreement.”
Certain legal requirements must be followed, including consultation with a lawyer, before a financial agreement can be made binding on a court. Binding financial agreements are discussed in more detail in other articles on this website.
Same-sex couples are permitted to foster children everywhere in Australia. But what if they want children of their own?
Adoption is regulated by state law. Same-sex couples are permitted to adopt children in:
When a female couple chooses to have a child by using artificial insemination, federal law regards the woman who gave birth as the mother. If a de facto relationship existed when artificial insemination occurred and both members of the relationship agreed to that procedure, federal law regards both partners as parents of the child.