The same-sex couples in a de facto relationship have the same rights as divorcing couple

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 laws governing same-sex relationships

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:

taxation

• superannuation
• worker’s compensation
• medical and pharmaceutical benefits
• veteran’s benefits
• social security
• aged care
• Family law

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.

De facto relationship requirements

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:

• the relationship lasted for at least two years
• the couple have a child together
• the relationship is registered as a de facto relationship
• one party made such a significant contribution to the relationship that it would be seriously unjust not to make a property settlement
• Registered de facto relationships

In some states, a same-sex couple can register their de facto relationship. Those states are:

• Australian Capital Territory
• New South Wales
• Queensland
• Tasmania
• Victoria

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.

Civil unions

Four states permit same-sex couples to enter into a civil union. They are:

• Australian Capital Territory
• New South Wales
• Tasmania
• Victoria

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

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.

Children in de facto relationships

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:

• Australian Capital Territory
• New South Wales
• Western Australia

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.