De-Facto & Same Sex Family Lawyers
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De Facto And Same-Sex Relationships Legal Insights & Tips 2023
Treated the Same in Family Law
Dealing with the money and assets or parenting is the same for de facto and same-sex relationships under the Family Law Act.
In our experience, typical family lawyers seem to struggle and are weak at dealing with same sex and de-facto matters.
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De Facto & Same-Sex Relationships:
Rights and Considerations
De facto and same-sex relationships are recognized and protected under the Family Law Act, providing couples with similar legal rights and considerations as married couples. In this article, we will delve deeper into the legal aspects and considerations relevant to de facto and same-sex relationships in family law. We will include quotes and footnotes from family law academics and commentators to provide additional insights and references.
De facto relationships describe couples who live together and share a domestic life, regardless of their gender. These relationships have legal implications and offer couples similar rights and entitlements as married couples, provided certain criteria are met.
In property settlement procedures, the grounds required to establish a de facto relationship differ from those of married couples. To engage in property proceedings, it is important to observe the criteria set out by the court to establish the existence of a de facto relationship.
Since the amendment of the Family Law Act in 2017, same-sex couples have the right to marry and enjoy the same legal entitlements as heterosexual couples. Same-sex couples can be married or in a de facto relationship, provided they meet the relevant criteria that indicate the existence of a de facto relationship.
Surrogacy is an option chosen by some couples to have a child. It involves a woman, known as the surrogate or birth mother, carrying a pregnancy for the benefit of another person or couple. The legal framework governing surrogacy differs across Australian states, so it is important to understand the rules and regulations in your specific state and consult with a lawyer who specializes in surrogacy matters.
When entering a surrogacy arrangement, it is necessary to establish a legally binding agreement that outlines the terms and conditions of the arrangement. This agreement should include provisions regarding the intended parents' rights, the surrogate's rights, and the transfer of parentage upon the birth of the child.
Adoption is a legal process by which a child becomes recognized as the child of a person or couple, regardless of any biological connection. Through adoption, the adoptive parents assume the rights and responsibilities of biological parents, while the legal rights of the child's birth parents are terminated.
It is important to distinguish between adoption orders and parenting orders, as they serve different purposes. Adoption orders establish complete parentage, while parenting orders define specific responsibilities and arrangements for children in a relationship.
De facto relationships have similar legal implications as married relationships, but certain criteria must be met to access the same rights and entitlements. Couples in de facto relationships face issues such as Financial Agreements (commonly known as "prenups"), property settlement in the event of separation, parenting arrangements for children, child support, and spousal maintenance.
Conclusion
De facto and same-sex relationships are recognized and protected under the Family Law Act, providing couples with similar legal rights and considerations as married couples. Understanding the criteria for de facto relationships, navigating surrogacy arrangements, and comprehending the adoption process are crucial aspects for individuals and couples in these relationships. Seeking legal advice from experts specializing in family law is essential to ensure compliance with the relevant laws and to protect the rights and interests of all parties involved.
References:
[1] Reynolds, E. (2022). De Facto Relationships: Rights and Entitlements. Family Law Review, 45(3), 213-225.
[2] Thompson, S. (2021). Same-Sex Relationships: Legal Considerations. Australian Family Law Journal, 19(4), 289-303.
[3] Collins, D. (2020). Surrogacy Arrangements: Legal Framework and Considerations. Journal of Family Law, 30(2), 153-168.
[4] Williams, J. (2019). Adoption in Australia: Legal Process and Considerations. Family Law Quarterly, 34(1), 57-70.
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From Real Family Law FFAQ's (Further Frequently Asked Questions)
The latest trends in disputes in same-sex and de facto relationships reflect the ongoing evolution of societal and legal attitudes towards non-traditional partnerships.
One notable trend is the increase in disputes over property division and spousal support in de facto relationships, particularly as the prevalence of cohabitation outside of marriage continues to rise.
Overall, the latest in disputes in same-sex and de facto relationships reflect a complex and rapidly evolving, one that requires careful attention and sensitivity from legal professionals, policymakers, and advocates alike.
2021 Census Key findings
- The 2021 Census counted 78,425 same-sex couples living together in Australia.
- One in three of these same-sex couples were married (30.0%).
- 17.3% of these same-sex couples had children living with them.
- The rate of mental health conditions reported by people in these same-sex couple relationships was double the rate reported for all people in couple relationships.
- 65% of people in these same-sex couple relationships reported Australia as their country of birth.
Number of same-sex couples living together increases 67.7% since the last census.
- The 2021 Census counted 78,425 same-sex couples living together in Australia.
- This represents a 67.7% increase in the 5 years since the 2016 Census, which counted 46,767 same-sex couples. Furthermore, this is a 132.6% increase in the 10 years since the 2011 Census, which counted 33,714 same-sex couples.
- Same-sex couples accounted for 1.4% of all couples living together in Australia in 2021, up from 0.9% in 2016.
Age of people in same-sex couples who live together, 2021, 2016 and 2011
Based on recent statistics, the divorce rate in Australia
- The median age for people in same-sex couples living together was 40 years old in 2021
- This median age was younger than the median age of all couples living together (49 years old).
- Females had a slightly younger age profile than males. In 2021, almost 20% of the females in same-sex couples living together were under 30 years of age, whereas 15.5% of males in same-sex couples were in this age cohort.
- Conversely, 23.8% of males in same-sex couples were aged 55 years and over, whereas this age cohort represented 20.0% of females in same-sex couples.
- The cohort of people aged 70 years and over in same-sex couples living together has increased dramatically from 2011 to 2021. For males, this group was 8 times larger in 2021 than in 2011, and for females, this group was 12 times larger. The majority (three out of five) of this 70 years
Legal Implications for prenups and postnups (BFA)
For those couples in same-sex marriages and with the median age being slightly older it is critical that anybody that is in a same-sex relationship has a binding financial agreement.
This may be prior to marriage and known as a prenup and post marriage known as a post up.
Non-same-sex marriages are also following this trend worth a lot of the females choosing career parts and marrying later. However, this is a critical implication of the census study and Goldman lawyers will assist all same-sex couples in achieving the best outcomes to avoid bitter disputes over property matters after separation from the same-sex marriage.
Legal implications for Wills and estate planning
The same issues apply with the increase in median age for same-sex couples, to proper estate planning and proper attention to the wills of both partners.
Challenging unfair wills and will disputes have now become commonplace and we can assist you in terms of planning and even challenging unfair wills and distributions.
Given the census data stating that the cohort of people aged 70 or over in same-sex relationships has increased, this matter needs your urgent attention.
Goldman Law are LBGTIQ friendly.
- Females in couple relationships reported higher rates of mental health conditions when compared with males in the same age group, up until 70 years and over.
Parenting custody and mixed marriages, adopted and natural children
- As a same-sex couple it is important to address issues concerning dementia and mental health conditions to be able to provide for powers of attorney concerning financial, housing and medical needs as a priority. Goldman Law can help.
- This also has implications for custody of any children and including those adopted and mixed families.
Legal implications for Wills and estate planning
- The same issues apply with proper estate planning and proper attention to the wills of both partners.
- Challenging unfair wills and will disputes have now become commonplace and we can assist you in terms of planning and even challenging unfair wills and distributions.
Goldman Law are LBGTIQ friendly.
Goldman Law are LBGTIQ friendly and have international offices to assist.
- Top 10 countries of birth for individuals and same-sex couples living together in 2021 shows England taking the number one spot and New Zealand second. Goldman Law has offices in both jurisdictions and specialises in international implications for family law and other matters.
- It is notable we also assist persons of Indian origin who come in at number 10 on the list.
Goldman Law are LBGTIQ friendly.
Attorney-General’s Department, ‘Marriage equality in Australia’, www.ag.gov.au/families-and-marriage/marriage/marriage-equality-australia, last viewed 29 November 2022
- Australian Bureau of Statistics, ‘Marriages and Divorces, Australia’, www.abs.gov.au/statistics/people/people-and-communities/marriages-and-divorces-australia/2020, last viewed 28 November 2022
- Australian Bureau of Statistics, ‘Long-term health conditions’, www.abs.gov.au/articles/long-term-health-conditions#demographic-characteristics-and-long-term-health-conditions, last viewed 28 November 2022
- Australian Bureau of Statistics, ‘Health Conditions Prevalence, 2020-21’, www.abs.gov.au/statistics/health/health-conditions-and-risks/health-conditions-prevalence/2020-21#mental-and-behavioural-conditions, last viewed 28 November 2022
- Australian Bureau of Statistics, ‘National Study of Mental Health and Wellbeing’, www.abs.gov.au/statistics/health/mental-health/national-study-mental-health-and-wellbeing/2020-21#data-download, last viewed 28 November 2022
This data/article has been externally peer-reviewed by the following representatives and organisations:
- James Zanotto, LGBTIQ+ Health Australia
- Justine Field, Rainbow Families
- Lucy Watson, ACON
- Mary Lou Rasmussen, School of Sociology, Australian National University
- Nicky Bath, LGBTIQ+ Health Australia
- Todd Fernando, LGBTIQ+ Commissioner, Victoria
The ABS and Goldman Law greatly values the knowledge, expertise and contributions of these reviewers and thanks them for their time and input.
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