Same sex de facto couples have same legal rights as married couples in the Family Courts

24-September-2015 Family Law By Simone Green

With much public debate recently emerging on the issue of same sex marriage and marriage equality, it is worth looking at the existing rights of same sex couples when it comes to the Australian family law system.

The Australian Constitution (in Section 51 [xxi]) gives the Commonwealth Government exclusive power to make laws in respect to marriage. State and Territory governments do not have this power. This was made very clear by the High Court in The Commonwealth of Australia v The Australian Capital Territory [2013] HCA 55, which ruled unanimously that the Marriage Equality (Same Sex) Act 2013 was unconstitutional.

The Federal Marriage Act 1961 currently governs marriages in Australia and does not recognise marriage by same sex couples, whether the marriage is performed in Australia or in another country.

Interestingly, the Constitution itself is not a problem. Marriage in the constitution is not defined as being between a man and a woman but the legislation enacted via the power, being section 5 of the Marriage Act 1961, defines marriage as:

“the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”.

So essentially it remains up to Federal Parliament to pass the relevant amendment to the Marriage Act (to change the definition of the word ‘marriage’) before Australia can welcome legally recognised same sex marriage.

Are there any differences when it comes to the division of property assets?

Same sex couples may be recognised as ‘de facto’ under the Family Law Act for the purposes of entitlement to property division by the Family Courts. Essentially, separated same sex couples are treated no differently to separated heterosexual de facto couples.

De factos and married people have essentially the same rights to property under the Family Law Act since amendments were made in 2009, with one very big difference:- married parties can apply for property orders at any time but unmarried couples (including same sex) who have been in a domestic relationship for under two years must meet the relevant threshold test in Section 4AA of the Family Law Act before they can seek a property adjustment through the Court system.

Do parenting orders differ for same sex parents?

Same sex biological parents are treated no differently within the Family Court system to heterosexual parents but problems may arise when recognising the other same sex parent in circumstances where problems with the other biological parent or the partner of the other biological parent find their way into a Court, or when the same sex parent’s relationship breaks down. This type of parenting relationship poses real challenges for the Family Law and multiple parties to litigation.

Essentially, separated same sex couples are treated no differently from heterosexual couples.

For instance, when a child is conceived through donor insemination (in the case of lesbian parents or heterosexual parents in cases of male infertility) the partner of the birth mother is deemed to be the ‘intended parent’ if they have consented to the procedure. This leaves the biological father in a tenuous legal position (along with the biological father’s partner) if they had intended to have a continuing relationship with the child. Even the ‘intended parent’ is not expressly stated to be the ‘parent’ of the child within the Family Law Act.

There will always be a legal bias towards the biological parents in parenting cases. It is up to the non-biological parent to assert their ‘parental responsibility’ by an application in the court if they are not on the child’s birth certificate.

In a single decision on same-sex parentage, the case of Maurice v Barry (2010) 44 Fam LR 62, held that the other ‘intended parent’ was regarded as a ‘parent’ for the purpose of determining parental responsibility for the child.

The paramount principle of making decisions in respect to any child, however, is that any parenting order must be deemed to be in that child’s best interest, regardless of who the actual parents are.

In the area of adoption and fostering children, the State laws prevail and in NSW, same sex couples are able to adopt and foster children.

If you would like further advice or information, please contact the Family Law experts at Streeterlaw on 8197 0105 or email

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