In assessing whether you are living together on a genuine domestic basis, the Court may look to

• The duration of the relationship;
• The nature and extent of common residence;
• Whether a sexual relationship exists;
• The degree of financial dependence or interdependence and arrangements for financial support;
• The ownership, use and acquisition of property;
• The degree of mutual commitment to a shared life;
• Whether the relationship is or was registered under a prescribed law of a State/Territory;
• Arrangements for the care and support of children; and
• The reputation and public aspects of the relationship.

No one factor should be considered more important than any other. However, it would be expected that the more factors that can be proved would help to determine that there was a de facto relationship and, conversely, the more factors that can be disproved would help establish that there was not.

Similarly, there are no minimum or maximum amounts that can be attributed to any factor, such as a minimum number of nights per week that might indicate if a ‘common residence’ has been maintained.

In 2009, the Federal Government made amendments to the Family Law Act that gave de facto couples – including same-sex couples – almost the same rights and obligations as married couples.

The Family Law Act recognises that a party could even be in multiple de facto relationships, and that even a person who is married could still be a party to de facto property proceedings.

Unlike marriage, de facto status is not entirely portable. While it is recognised in all states of Australia, Canada and New Zealand, it is not recognised in the USA and many other countries.

More information

Find out more about our Family Law services, or contact our experienced family lawyer, Mark Orchard, for a free initial consultation.

Phone: 07 4639 0358
Email: morchard@cp484.ezyreg.com

Marriage

Whilst same sex couples cannot legally marry in Australia, they are able to register their relationship with the Queensland Registry of Births, Deaths and Marriages.

Overseas marriages of same sex couples are also not recognised as marriages in Australia.

Parenting

Where a child has been born to a couple, both the Queensland and Federal governments recognise both parents regardless of sex.

In Queensland, if the child is born through a formal assisted reproductive technology procedure, whether or not the donor is known, the non-birth parent is identified on the birth certificate of the child. The donor is not considered a parent of the child.

In Queensland, partners of birth mothers are allowed to be included on a birth certificate as “Parent”.

Male same sex couples are entitled to have a child through an altruistic surrogacy arrangement (when a woman becomes pregnant and gives birth to a child for another couple but she is not paid any money for doing so) and both partners will be legally recognised.

Same sex couples are not able to adopt in Queensland. Whilst de facto couples are legally allowed to adopt, the law specifically excludes same sex couples. Same sex couples can however be considered as foster carers.

If a same sex partnership breaks down, the parties may be required to finalise the future parenting arrangements of any children born of the relationship. The process undertaken in resolving any parenting dispute is the same as an opposite sex de facto relationship and very similar to a marriage.

Property

Same sex couples can own property jointly and have the same rights to property settlement as other de facto couples in Queensland.

Similar to opposite sex de facto relationships and marriages, same sex couples are able to enter into a financial agreement (previously called a cohabitation agreement) during their relationship to anticipate and determine what is to happen upon the breakdown of the relationship in respect of the distribution of any joint or separate property and/or the payment of maintenance.

In the absence of a financial agreement, upon the breakdown of a same sex de facto relationship, the same legal process and methodology is applied to determine a financial settlement as in an opposite sex de facto relationship or marriage case.

Same sex couples can leave property to each other in their wills and each can appoint the other as his or her attorney or statutory health authority.

More information

For more information on family law in relation to same sex couples, or to seek advice on a related family law matter, please contact our experienced family lawyer, Mark Orchard, for a free initial consultation.

Phone: 07 4639 0358
Email: morchard@cp484.ezyreg.com

PDF:  Family Law for Same Sex Couples