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In the coming months, our Ask An Expert section will return to its monthly column format.
Have a question you want answered? Email us. We'll post recently answered questions here periodically. Remember you can find general information on your rights here. Should you need more in-depth information or advice we recommend contacting the Inner City Legal Centre.
Questions answered recently:
Please note that this column is information of a general nature only and does not constitute legal advice.
Previously Answered Questions:
Adoption, Surrogacy and Parenting
Civil Unions and Marriage
De Facto Relationships
Migration
Property on Relationship Breakdown
Protecting your Relationship Rights
Sex
Social Security
Superannuation
Adoption, Surrogacy and Parenting
Are agreements between donors and mothers binding?
In general, no. However some aspects may be binding, for example a voluntary agreement to provide child support by someone (either a co-mother or a donor) who is not covered by the legislation, could be treated as a contract and enforced.
Agreements about care, residence and contact with children are never binding as the court always has jurisdiction to determine what is in their best interests. Nevertheless, agreements may be taken into account, for example as evidence of the parties intentions as to the kind of family form they envisaged.
Agreements are also a good way of making sure everyone knows what everyone else intends before conception.
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What is the legal position of known and anonymous donors?
Whether a donor is known or anonymous, he is not a legal father under state or federal law as long as the baby is conceived through assisted conception. It does not matter whether assisted conception takes place through a clinic or with a syringe at home. Sperm donors do not have rights as a parent nor do they have liabilities, such as child support. Conversely, no matter what your intentions or agreement with the donor is, if you conceive through intercourse, then he will be a parent.
If a known donor was listed on a child’s birth certificate in NSW his name can be removed through a simple administrative process with his consent, or by court order if he does not consent.
It is important to note that a known and involved sperm donor may be considered a person concerned with the care, welfare and development of the child under the Family Law Act. Although this is not a legal parent, and provides no presumption in favour of contact, contact may be ordered by a federal family court if the donor can show it is in the child’s best interests. An order can also be sought by the parents and known donor with the parents’ consent.
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Would marriage give the right to adopt? Or would civil unions or de facto status do so?
Both married and heterosexual de facto couples are eligible to apply to adopt and so either married or de facto status for same-sex couples should bring the same eligibility. Civil union status would only do so if a specific inclusion of that status were made in adoption law. However note that there are very few Australian children available to adopt and relinquishing parents can express a preference for who they want. Same-sex couples, whether married, civilly unioned or de facto, would be unlikely to be eligible to adopt children from overseas because of the requirements set by the sending countries.
Same-sex couples in WA have been eligible to adopt since 2002 and in 2007, a child in Western Australia was placed with a gay male couple – five years after the reforms were passed in WA.
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Is it possible to become a parent through surrogacy in Australia? What is the law with regards to payment to the surrogate mother by the donors?
The laws about surrogacy in Australia are very complex and surrogacy, particularly if it involves payment, is illegal in many states. It is important to ensure that you get detailed legal advice if you are considering surrogacy.
Even in the states which allow surrogacy, there are strict conditions on how surrogacy must take place such as bans on advertising. Furthermore, it may be difficult to access fertility services to conceive, and the surrogate parent (and a partner) not the commissioning parents will be the legal parents to the child.
In NSW, once the Assisted Reproductive Technology Act 2007 (NSW) commences (which is likely to be in late 2009), commercial surrogacy will be prohibited in NSW.
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What is the position of the Family Court on custody and access with a parent who has left a marriage and is now gay?
The Family Court of Australia has never held that sexual orientation is a bar to residence or contact. There have not been many reported cases in recent years but it is an issue that most judges are now better informed on. Furthermore, it is now a primary factor in decision about kids that the court consider the benefit of a meaningful relationship with both parents, so there is a strong emphasis on on-going contact..
Make sure you get a good lawyer who has had previous experience with gay and lesbian clients.
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Is it possible, and legal to import semen from an international sperm bank for home insemination?
This is a really difficult question and the answer may depend upon which state you live in. Many Australian states prohibit “trading” in sperm unless the body is authorised by state and federal regulators to do so. The international sperm bank would not be authorised under any state law, but whether they are acting illegally depends upon whether state law extends to cover them. However the biggest problem for you may be in getting customs approval. You may in fact need a special import permit and should contact customs to find out.
There are fertility services within Australia that use donor sperm and treat lesbians, this may be an easier path.
Will a UK birth certificate be automatically recognised in NSW so that 2 women (the birth mother and her partner) will have rights as parents?
UK law was changed on 6/4/09 so that 2 mothers can register a child's birth with both their names on the birth certificate.
If 2 women are in a civil union or used a licensed clinic in the UK then yes they will both be parents under the new UK law. But if they are not in a union and conceive at home, the donor will still be the legal father and the co-mother (non-birth mother) will not be a parent under UK law.
This differs to the NSW approach which makes both women parents if they are in a de facto relationship whether they conceive at home or in a clinic.
NSW and federal Australian law will recognise 2 women as parents whether or not the UK law does, ie whether or not they are both on the UK birth certificate – but it does make it harder to prove to government authorities, etc. if they don’t have their names on the child's UK birth certificate.
Does the Baby Bonus apply to same-sex couples who have a child or more than one child?
From 1 January 2009 both parents in a same-sex couple are eligible for and assessed under the Baby Bonus rules. Previously only the birth mother or adoptive parent was eligible. More information on the amounts and how to apply contact Centrelink.
Will an IVF clinic assist a woman wanting to receive an egg donation from her female partner?
To my knowledge all clinics in Sydney do treat lesbian clients, and I have heard of a number of women who have undergone IVF pregnancies with their partners eggs. Some clinics may take a different approach to approval depending on the reason for doing so – ie if it is because of emotional reasons such as wanting to both have a physical connection to the pregnancy, rather than because one partner is having trouble getting pregnant or maintain a pregnancy – but there are certainly some out there who would treat you wither way.
If a woman has a child through ART (Assisted Reproductive Technology) whilst single, and later meets a partner - will her female partner be recognised as a parent?
If a woman conceived through assisted conception while single and later entered into a relationship, her partner is a step-parent to the child under the Family Law Act, but this brings with it very few rights or responsibilities compared to legal parenthood. At the moment the only option in NSW would be for the mothers to seek consent orders from the Family Court for shared parental responsibility, as step-parent adoption is still not available to same-sex couples in NSW – you can help by sending a letter to the Premier to act on recent recommendations that we should do just that
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Civil Unions and Marriage
What federal rights available to married and de facto couples are not available to couples under a state-based civil union?
No rights available to married or heterosexual de facto couples under federal law would be conferred by state-based civil unions for same-sex couples. State-based civil unions would only affect the law of the state in question and so could provide no redress for discrimination in Federal areas of the law such as superannuation, immigration, taxation, Medicare, defence entitlements and social security.
Following reforms in 2008 however, state-based registration schemes can be used at a federal level as conclusive proof of a de facto relationship in most areas.
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Some people are against marriage because historically marriage treated women as property. Are women disadvantaged in any way in modern day marriage?
Originally when women married they lost the right to themselves as a separate legal entity, in law they were frankly ‘owned’ by their husbands. Some of the vestiges of this status persisted well into the 20th century, for example married women could not work in the public service until the 1960s, lost the right to their own citizenship until the 1970s, and could not refuse consent to sex with their husband until the 1980s. There are no longer any legal disadvantages to marriage for women.
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What is the difference between relationship registration and civil unions?
Generally systems that have been called “registration” grant a limited number of rights (for example in the USA there are numerous systems at a local government and even workplace level) while civil unions grant a fuller range of rights. But this is not always the case, some of the European systems used the term registration but grant a wide range of rights.
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If I register my relationship in Tasmania or have a civil union in the ACT, will that be recognised in federal law – eg for immigration purposes will I be treated as married rather than as interdependent?
Following reforms in 2008, a state-based registration certificate may be used to prove that you are in a de facto relationship at the federal level. This will grant all federal rights available to de facto partners, but you will not be recognised as ‘married’ under Australian law.
However, immigration law does not recognise either marriage or registration as ‘conclusive’ proof of a relationship; partners still have to demonstrate mutual commitment to a shared life (i.e. they have to show that the marriage or registration is genuine).No, these laws will not give you the same status as married people in federal law, although they may do for the law of the state that grants the status.
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The federal government lacks the constitutional power to introduce civil unions (as the power it is granted in the constitution is over “marriage”, “divorce” and “matrimonial causes”). What are some options available to get around this problem?
The most obvious source of federal power that could be used is the external affairs power. The federal government would attract the power to have civil unions if it entered into a treaty with other countries to give recognition to their civil unions, or if it were found to be in breach of other treaty obligations – such as the International Covenant on Civil and Political Rights (the ICCPR). A complaint under the ICCPR was the same way that Tasmania’s criminal laws against gay sex were overturned by the Keating Labor government in 1994.
This requires an individual complaint to the United Nations Human Rights Committee (HRC). Ideally, the complainants would include a series of same-sex couples where at least one of them was an Australian citizen and the couple had a form of recognition that the federal government did not honour, such as: a couple with a UK Civil partnership (one partner must have dual UK nationality to do this), a couple with a NZ Civil Union and a couple married in Canada. These couples would need to apply for and be denied federal benefits in Australia that are granted to heterosexual couples who are married or civilly unionised. The whole HRC process is done through written submissions, so it is not expensive, but it would have to be done with expert legal advice and in conjunction with a lobby group to make sure that it is well coordinated and all the bases are covered.
If the HRC upheld the complaint, then the federal government (and any future government) would be able to use the constitutional “external affairs” power to remedy it - and this would likely give them power to introduce civil unions.
Ok, so not everyone is going to be able to bring a test case, but I think it is worth a try, so spread the word.
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De Facto Recognition
What relationship rights do I have at the moment?
Same-sex couples who live together in a committed relationship have had significant relationship rights, such as inheritance and hospital visitation rights, since 1999 in NSW. From 1 July 2009, same-sex couples who live together in a committed relationship will also have access to all federal rights and responsibilities as de facto partners, including superannuation, taxation, health, immigration and workplace rights. For some laws, such as property division and inheritance, you must generally have lived together for 2 years to qualify, but for most areas of law there is no time requirement and you must simply demonstrate that you are in a committed relationship.
The only areas of remaining discrimination against same-sex couples are::
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How is de facto recognition different from civil unions or marriage?
There are a number of differences – in how you get to be in one, in the rights it gives you and whether the status goes with you if you move or travel. De facto recognition automatically applies once you meet set criteria. This is good in that you don’t need to do anything formal to be recognised as a couple, but it is bad if there are aspects of your relationship where you didn’t want to be recognised– for instance if you never intend to share property. (Note however that this is the same for heterosexual couples, even if they chose not to marry, they will be ascribed de facto status). All couples can opt-out of some obligations, for instance by signing a “domestic relationship agreement” – basically as a “pre-nup” - to order property in the event of a break-up. Likewise couples can opt-out of ascribed inheritance rules by writing a will. De facto recognition gives you most of the same rights as unmarried heterosexual couples and married couples under state and federal law, particularly due to significant same-sex reforms in 2008. Whether or not you still have rights as a de facto if you go somewhere else will depend on the laws there. At the moment every state and territory in Australia has very similar de facto laws to NSW - so you would be recognised everywhere in Australia. There is de facto recognition in Canada and New Zealand, but not, for instance, in the United States. Marriage requires a couple to register their intention to marry a month in advance and then go through a formal process. In Australia, marriage in fact gives very few additional rights compared to de facto recognition.. However, marriage is a more easily portable status than de facto because it comes with proof of the status and is recognised in the laws of other countries also. Same-sex couples cannot marry in Australia. As a result of the 2004 marriage ban, if same-sex couples do marry elsewhere (for example in Canada), their marriage will not be recognised in Australia. Civil Unions require couples to go through a formal registration process similar to marriage. They exist in many European countries and have recently been introduced in the UK and New Zealand. Civil unions have been described as “marriage by any other name” when they grant equal rights and as “marriage-lite” when they do not. Civil unions may not be as portable as marriage, because they are a new status so other countries have to pass laws to specifically recognise them (although note that the UK and New Zealand have already done so).
There are no federal civil union laws in Australia to date, but Tasmania, ACT and Victoria have civil partnership or registration schemes. It is possible that the federal government lacks the constitutional power to introduce civil unions (as the power it is granted in the constitution is over “marriage”, “divorce” and “matrimonial causes”). This remains to be tested.
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I read that the De Facto Relationships Act applies 11 tests to determine the legal validity of a de facto relationship, and that typically gay men can only satisfy 4 of these 11 criteria. Is this so?
Section 4 of the Act, since 1999 renamed the Property (Relationships) Act, defines a de facto relationship a relationship between two adult persons:
(a) who live together as a couple, and
(b) who are not married to one another or related by family.
A similar definition now exists in federal law.
It is quite rare for there to be contention over whether a de facto relationship exists, so there is usually no need for a court to inquire into it. For example if a same-sex couple break up and need the court to divide their property, if both partners agree that they had a de facto relationship, then it won’t be an issue.
However, if there is disagreement over the relationship existing, for example if one partner dies and their family contests the inheritance, the Court can look at a range of factors. These factors are the same for straight and gay relationships.
It is important to note that these factors are only a guideline of issues to be considered. The Act instructs the Court to take “all the circumstances of the relationship into account”, to look at only those factors that are relevant to each particular case, and that no one factor or any combination of factors is necessary to establish a de facto relationship. This last point was included in 1999 in response to gay and lesbian community lawyers concerns that same-sex relationships may not have exactly the same features as heterosexual ones. We did not want our community disadvantaged for not conforming to pre-existing conceptions of what relationships of commitment require.
The list of factors is:
(a) the duration of the relationship,
(b) the nature and extent of common residence,
(c) whether or not a sexual relationship exists,
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,
(e) the ownership, use and acquisition of property,
(f) the degree of mutual commitment to a shared life,
(g) the care and support of children,
(h) the performance of household duties,
(i) the reputation and public aspects of the relationship.
In cases that have been decided in the past five years it is clear that even same-sex relationships that don’t conform to standard heterosexual ideals will be recognised. For example:
- A number of cases have found that gay men in cohabiting couple relationships that were non-monogamous (including regular threesomes in one case) were still de factos because their primary emotional commitment was to each other.
- Gay guys who met originally through paid sex, but who later moved in together were held to be de factos.
- Closeted couples have been held to be de factos.
- Lesbians who kept separate bank accounts through the entire relationship were held to be de factos.
- In a recent heterosexual case, the fact that a couple had to live apart for an extended period of time while one partner cared for her ailing parents, did not stop the relationship from being a de facto relationship.
- In another recent heterosexual case the couple had been together for 6 years but had never had a common residence – instead they took turns in staying at each other’s house for most nights of the week. This was held to be a de facto relationship.
So it is not the number of factors that you satisfy that matters, it is whether on the whole your relationship seems committed and enduring. So far the court has interpreted the category broadly and there does not seem to be any cause for concern about a diverse range of same-sex relationships satisfying the criteria.
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How do I prove I am in a de facto relationship?
One of the practical advantages of civil unions and registration systems is that the registration proves that the relationship exists, whereas with a de facto relationship you may have to prove it.
The first thing to note is that you only have to prove your relationship exists if there is someone who denies it. If you are still together this is easily solved by a statutory declaration or affidavit from both of you saying when you got together, that you live together and that you are in a committed relationship. You don’t need a court order to prove that your relationship exists.
Most frequently proving a de facto relationship is an issue when partners break up and one person, rather than denying it outright, claims that the relationship was much briefer than it was or that it had ended earlier even though the parties still continued to live together. Another common, though decreasing, scenario is where a couple are closeted, one partner dies without a will and their family denies the relationship existed and claims the inheritance for themselves.
There are a lot of simple things you can do to ensure that if you are placed in a situation of having to prove your relationship, you can do so. A relationship can be demonstrated through all kinds of evidence of cohabitation and commitment – jointly purchased property or names on leases, joint bank accounts, shared purchases of furniture or household items, or listing each other as next of kin on documents such as passports, superannuation funds and emergency contact forms. Even photos and joint invitations to social events or shared holidays are good evidence. You can also execute mutual wills in which you name each other as partners. You don’t need to prove that your relationship is perfect, or even that it is monogamous: the essence is that you live together and are committed to each other.
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Would federal recognition of same-sex couples as de facto relationships take away any of our current rights at state level?
States have exclusive power over a range of areas important to relationships, such as inheritance, burial, guardianship and compensation law. The Commonwealth has power over areas such as tax, immigration and social security.
Federal recognition as de factos would only grant rights at federal level, and would not impact on any of the rights under state law.
This is because federal law can only override state law when the Commonwealth has power over that area under the Constitution. So, even if there were Constitutional power for civil unions (which I doubt), they would also be limited in the sense that they would only be operative in federal law, unless all of the states also changed all of their laws to recognise the status granted.
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Would de facto recognition at federal level allow a government that did not like same-sex relationships to ban same-sex relationship recognition, like the marriage ban?
A later government could only repeal what had already been done – so they could take away federal rights that an earlier government had granted. But they could not revoke rights that existed at state level.
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Migration
Both I and my same-sex partner want to migrate from our home country to Australia. Can we do this together as a couple under the skilled migration program?
Yes. From 1 July 2009, same-sex couples who live together in a committed relationship are recognised as a family for immigration purposes and have access to the full gamete of visas which currently recognise partners and other family members.
To be eligible, a same-sex couple must show they have lived together in committed relationship to the exclusion of all others for at least 12 months prior to lodging an application. However, the 12-month cohabitation requirement may be waived in compassionate or compelling circumstances.
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Can the same-sex partner of an Australian citizen or permanent resident migrate to Australia?
Yes, from 1 July 2009 a same-sex de facto partner will qualify under the same ‘spouse visa’ which currently exists for heterosexual married and de facto partners. You need to have proof of your relationship and have lived together for a year (unless compelling and compassionate circumstances exist).
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Are same-sex couples in a UK civil partnership (one British citizen and one Australian citizen) entitled to citizenship in Australia and the UK in the same way that married couples would be? While UK immigration and citizenship law is the same for civil partners and for married partners, civil partnerships from the UK, NZ and elsewhere are not recognised in Australian federal law.
However, same-sex couples who have lived together in a committed relationship for 12 months or more may be recognised as de facto partners for immigration purposes. An overseas civil partnership would be given a great deal of weight in the application process even though it is not officially recognised as a status.
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If I have not registered my relationship or entered a civil partnership/marriage, how do I prove my relationship for migration purposes? We have lease records showing shared expenses as well as a partnership certification from our workplace.
You can use whatever information you have to hand, including photos of shared holidays, statements from friends who have known you as a couple over time, joint purchases etc. The lease and workplace partnership documentation would definitely be considered as relevant.
I'm an Australian citizen living abroad. Can I bring my partner to Australia if we've been in a 2 year relationship and they qualify for a working visa?
Yes from July 1 2009 same sex couples are de facto couples in all federal law including immigration, so your partner qualifies for an accompanying partner on a work visa, or as partner of an Australian citizen. See http://www.immi.gov.au/legislation/key-changes/_pdf/same-sex-migration-questions-answers.pdf for more information.
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Property on Relationship Breakdown
Upon relationship breakdown, is each partner (of a defacto relationship) likely to receive 50% of the assets?
Same sex partners who have lived together for 2 or more years and made a contribution to shared property have been able to make a claim for a share of that property under state law since 1999. The major advantage of being included under federal family law is that the process is cheaper, faster and fairer, with far better dispute resolution processes to help couples come to their own resolution than the state courts.
The Family Court does not simply give “half” of any property to any partner who applies. The court assesses each partner’s contribution and if one partner has made sacrifices for the relationship – such as time out of the workforce to care for children or for their partner if they are unwell – they can also take that into account when assessing future needs.
Typically in a case involving a heterosexual couple who have been together 15 or 20 years and had children where the woman has taken several years out of the workforce and ends up with a far lower earning capacity than the man a needs adjustment in her favour might end up being 5-10% of the value of the property.
So no, it is not at all conceivable that a partner who contributes nothing will obtain half of the assets.
As under the old state law, a pre-nup is available to the parties if they wish to set out a division of assets in advance. This is also cheaper and simpler to do now under federal law.
Note: As the Court itself assesses the contribution of each partner, the final decision on how property is to be divided may not be as expected or may not be satisfactory to each partner.
Can my partner and I make a binding agreement now about property division (should our relationship breakdown in the future), which can't be overturned by the courts?
If you don’t want the new family law provisions to apply to you then you can enter into a binding financial agreement. If you enter into such an agreement after 1 March 2009 you should do so under the federal rather than state law (they are very similar in effect but have different forms and procedures) –you can do this at any time during or after a relationship.
To do so you should see a lawyer to draft an agreement and then both partners need to be separately advised on the effects of the agreement.
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Protecting your Relationship Rights
What rights do straight couples have that I don’t have?
In NSW the only difference is that opposite-sex married and de facto couples can apply to adopt children as couples, while lesbian and gay applicants are only able to apply as individuals. In practice, individual applicants may have a lower priority. In federal law, since reforms in 2008, same-sex de facto couples now have comprehensive recognition in federal law – such as immigration, superannuation, taxation and family law. However, same-sex couples are still not able to marry in Australia.
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What can I do to get legal rights and protection for my relationship now?
All state laws and federal law already grant us automatic recognition as de facto couples in areas such as superannuation, taxation, family law, inheritance, guardianship, workplace conditions and accident compensation, if we live in a committed relationship. For most of these laws there is no required length of cohabitation, but a 2 year prerequisite generally applies to areas such inheritance and property division.
Some simple things you can do to make the most of your rights under the law include:
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Keep records. If you are in a de facto relationship but don’t own property together or have joint bank accounts, make sure that you keep a copy of the lease if both your names on it, or receipts for items like furniture that you bought together, or tickets from shared holidays. If you live in the ACT, Tasmania or Victoria you can enter into a Civil Partnership or register your relationship (which gives few additional rights, but can be used as proof of a relationship).
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Write a will. If your financial affairs are simple and you only want to leave property to a few people, use a standard form from a newsagents or the precedent for a simple will in the Law Handbook. If you have a lot of property or it is complicated, get a will drawn up by a lawyer.
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Name your partner as an executor or choose an executor who you trust will respect your wishes and your relationship. Name your partner as your de facto partner and your next of kin (this could then be used by them as proof in other situations, for example if you were injured and someone had to make medical decisions). Encourage your partner to do the same in their will.
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If you have a child, make sure that they are named in both mothers' wills. If you are the birth mother you can make name your partner (or anyone else) as the “testamentary guardian” of the child. If there is no other legal parent, this gives that person the right to live with and care for the child in the event of your death, in the absence of any court orders to the contrary. If you live in NSW, Victoria, Western Australia, Northern Territory or the ACT and have a child with your female partner through assisted conception, make sure both of you are listed as parents on the birth certificate.
- Nominate a beneficiary in your super fund. If you die, death benefits may be worth tens or hundreds of thousands of dollars. In some super funds your nomination will be binding, while in others it won’t (although trustees are usually reluctant to go against a nomination). Some super funds allow you to do this online, so you don’t necessarily have to out yourself to your employer. This can also be valuable proof of the existence of your relationship for other purposes. Encourage your partner to do the same.
Other steps are less simple, but are still better than the costly and complicated alternatives if you don't take action on your own behalf. Many of these are particularly important if you have children born into a lesbian relationship:
- Consider entering a domestic relationship agreement. This is basically a "pre nup" setting out how you want to divide your property and finances if you separate. You can enter into such an agreement at any time during a relationship, or at the point of separation. If done properly it is binding on you both (you both must receive independent legal advice and the agreement must in writing and witnessed). It should cost around $3000, a lot less than the cost of trying to divide property in a later dispute.
- For parents in Queensland or South Australia, seek Parenting Orders by Consent from the Family Court. Queensland and South Australia are the only two states in Australia which do not recognise non-biological mothers as legal parents to their children. Mothers in these states can approach the Family Court jointly to ask for parenting orders by consent. These can cover where the child lives and who has parental responsibility over the child. It is a relatively simple process that can grant extensive rights to the co-mother to have residence of and make decisions about the child. It provides an important "status quo" if the birth mother were to die - so for example other family members could not come and take the child. It also provides a status quo if a couple separates - so for example the birth mother could not, without court orders, just take the child to live in another country. Parenting Orders by Consent can also be used to recognise other people who have a significant role in a child’s life, such as step parents or other co-parents.
- For expectant mothers in Queensland or South Australia, go to Sydney (or Perth, or Darwin, or Canberra, or Melbourne) to give birth! NSW, ACT, WA, Victoria and NT all now grant lesbian co-mothers automatic parental status when the birth mother conceives through assisted conception, regardless of where conception takes place. They provide that if the baby is born in those jurisdictions both mothers can register themselves as parents on the birth register and be named as parents on the birth certificate. Whether that birth certificate has full legal effect in other states that don't yet recognise co-mothers remains to be seen, but it is a first step.
If you live in NSW, ACT, NT, WA or Victoria and already have kids with a female partner using assisted conception, you can apply to the Births Registry to have the birth certificate amended to include both mothers' names.
If your partner was not in a relationship with you prior to conception, but joined your family later, you may be able to apply for a second parent adoption in WA, Tasmania or the ACT.
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What is a “domestic relationship agreement”?
A domestic relationship agreement, now called a binding financial agreement under the federal family law system, is basically a “pre-nup that you can enter into with your partner. You can enter into an agreement before or at any time during your de facto relationship or after it has ended as a way of finalising your property distribution. You need a lawyer to draw one up and both parties have to get separate advice from their own independent lawyer about whether or not the agreement is fair and in your interests.
An agreement provides both certainty and flexibility: only in rare circumstances will courts overturn a properly executed agreement, but you can both vary it at any time by consent if things change and you want to make new provisions.
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Sex
What is the age of consent in NSW?
Since 2003, the NSW age of consent is 16 for everyone, regardless of the gender of either partner.
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Social Security
What are the implications on sole parent pensions and child support if I move in with my same-sex partner and kids? Is this a de facto relationship?
Many social security payments are reduced or disallowed if a claimant has a live-in “partner”. From 1 July 2009, same-sex couples who are living in a de facto relationship will be treated in the same fashion as heterosexual partners – therefore same-sex de facto partners will no longer be entitled to claim any benefit for singles (e.g. sole parent pension) or any benefit at the single rate (e.g. age pension, etc.), unless there are ‘special circumstances’ in your particular case to treat you as a single person (i.e. the rule in section 24 of the Social Security Act 1990 (Cth) applies).
Section 24 may be argued where there is an unusual or special circumstances in your particular case, which mean you cannot take advantage from the cost-savings that are assumed to accrue from sharing expenses with your partner. You have to also show that you would experience financial hardship if you were treated as a couple.
If you are separated from your partner, you may be expected to pursue them for child support payments before being eligible to apply for sole parent pensions. From 1 July 2009, most lesbian parents and some gay dads will be recognised as ‘parents’ for family law and child support purposes.
For more information see: Social Security and Federal Same-Sex Parenting Reforms.
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Will we be considered 'partnered' for social security purposes when the same-sex reforms commence on 1 July 2009, if we are a couple that maintains separate finances?
If you are in a committed couple relationship and you live together is possible that you are still in a de facto relationship for social security law (and every other federal and state law such as superannuation, inheritance, tax, medicare etc) even if you have largely separate finances. It is not a question of whether things are in separate or joint names so much as whether you have a shared life together.
To determine whether a same-sex couple satisfies the definition of a ‘de facto relationship’ under the Social Security Act (applying from 1 July 2009), Centrelink must have regard to all the circumstances of the relationship including:
- the financial aspects of the relationship (such as the joint ownership of property, the significant pooling of financial resources and the sharing of day-to-day household expenses)
- the nature of the household (including joint responsibility for the care of children and the division of housework)
- the social aspects of the relationship (including whether the couple hold themselves out to family and friends as a couple)
- any sexual relationship between the people
- the nature of the commitment (including the length of relationship and whether the people see themselves as de facto partners).
I would suggest the best course is to put all of the information to Centrelink and seek an advance ruling from them.
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Superannuation
How do I prove my relationship for superannuation?
The main reason you would need to prove your relationship for superannuation would be if one of you died. Death benefits are usually sizable, and if they are passed directly to an eligible dependant they will incur a lot less tax than if they go to beneficiaries after passing through the deceased’s estate. Until 2008, same-sex couples had to prove they were in an ‘interdependent relationship’ to satisfy the definition of a dependent. . This meant demonstrating that one or both parties provided the other with “financial support” and “domestic support and personal care” – a harder definition to satisfy than for heterosexual married and de facto couples. Thanks to the same-sex reforms however, from 1 July 2008, same-sex partners who are living in a de facto relationship will be treated in the same way as heterosexual de factos – provided that their superannuation fund has incorporated the new de facto definition (most do by default, but it is worth checking with your fund).To protect your relationships, simply list your partner as your beneficiary in your super fund, keep evidence of your relationship (e.g. bills, joint leases, photos), and also write a will in which you specifically leave any super benefits to your partner. That way your partner should be able to receive the benefits, either directly from the fund, or at worst through your will at a higher tax rate.
For more information see: Superannuation and Taxation.
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