A number of changes to the legislation governing relationships has been amended in recent times to make provision for same-sex couples to ensure that they have clearly defined entitlements to a property settlement and are able to seek parenting orders.
Same-sex couples have the same rights to property settlements as de facto couples and married couples with the changes that became effective on 1 March 2009. If you have lived in a same-sex relationship for at least two years and separated after 1 March 2009, you can apply for a property settlement. It is important to remember that an Application for property settlement must be filed no later than two years after the date of separation.
If you have not lived in a same-sex relationship for more than two years then you may be able to apply for a property settlement if there is a child of the relationship, or if you have made significant financial contributions during the relationship or the acquisition, maintenance and conservation of an asset held in one or both parties' names.
With increased access to medical and fertility treatments, many same-sex couples are enjoying the opportunity of parenthood. When separating from a partner, you will want to ensure your involvement in your child’s ongoing care and development.
Unfortunately, the parental rights of same-sex couples are not as clearly defined as their opposite-sex counterparts. You may find that if you are not the parent who has given birth to the child that you may have significant difficulties in having the right to make decisions about your child’s long-term care, welfare and development.
In the Family Law Act 1975, a parent’s right to make decisions about a child’s care, welfare and development is defined as “parental responsibility”. There is a presumption that the parental responsibility of a child is equally shared between the child’s parents unless the child has been subjected to or exposed to abuse, neglect or family violence.
The Act, however, does not define a same-sex person as a parent of a child if that person is not the biological parent of the child. As such the presumption of equal shared parental responsibility does not apply in parenting matters between same-sex couples. There is increasing case law that has provided the non-biological parent of a child from a same-sex relationship with equal shared parental responsibility when it has been in the child's best interest to do so.
You can make an application for parenting orders as a person concerned with the care, welfare and development of the child. As part of your application, you can seek equal shared parental responsibility, for the child to live with you or for the child to spend specific periods of time with you.
The msl family law team is experienced in dealing with all aspects of same-sex matters including:
Property settlements;
Acting on behalf of the biological parent of a child from a same-sex relationship; and
Acting on behalf of the non-biological parent of a child from a same-sex relationship.
