In 2017 following a postal vote the Marriage Act was amended to allow the union between two people of same sex to be legally recognised. We are the 26th country in the world to legalise same sex marriage. This amendment to the legislation will allow same sex couples to have the same protections for both property and parenting matters.
Since the amendments to the Family Law Act in 2008 the Court has had the power to alter the property interests of same sex couple living together in a bona fide domestic relationship. In this respect same sex couples have been treated the same way as heterosexual couples since 2008.
It is however somewhat more difficult to commence proceedings in the Family Court if you are a defacto couple because you must establish one of the gateway requirements such as common residence, financial dependence. This contrasts with parties to a legalised marriage as the existence of a valid marriage is sufficient to prove that the parties have operated joint finances and operate joint property interests.
There are also differing time limitations to consider. If you have been in a defacto relationship, then you must commence proceedings before the court for an adjustment of property interests within 2 years.
If you have been in a legalised marriage you may commence up to 12 months after a Divorce has been granted. It is very important to understand these time limitations as if you should miss these deadlines then a special leave application is required, and you run the risk of the Court denying your claim to commence outside the time period.
If a child is conceived by IVF to a same sex marriage using a sperm donor and the pregnant woman’s partner consents to the procedure, then the marital partner is at law a legal parent pursuant to S60H of the Family Law Act. If, however, the parties are not married the non-biological parent will need to prove they that they were in a defacto relationship at the time of the IVF procedure and that they also consented to the IVF procedure in order to be recognised as a legal parent.
What this meant prior to the same sex legislation was that same sex couples whom had conceived children through an IVF procedure did not have the presumption of parentage that applied to married heterosexual couples. The legalised marriage of parties eliminates the need for same sex defacto couples to prove that their relationship existed in order to be considered a child’s parent.
At this stage the presumption of parentage only applies to IVF pregnancies and does not apply to children conceived pursuant to Surrogacy arrangements. They are dealt with under state legislation.