Same Sex & Gender Diverse

In Victoria, if you are separating from your partner and you wish to formalise parenting arrangements, a financial settlement, or a divorce, your rights and responsibilities are set out in the Family Law Act. This legislation focuses on achieving fair financial settlements for separating parties and ensuring the best possible outcomes for children. These rules do not discriminate on the basis of the gender identity or sexual orientation of the parties. However, some parents who are gender diverse or in a same sex relationship may face complicating factors such as biological parentage, donor agreements and rights, and assisted reproduction specific to same-sex and gender-diverse relationships.

Divorce and Property Settlements

In the event of the breakdown of a marriage or de facto relationship, same sex couples and gender diverse people are entitled to the same property settlement and parenting order processes as everyone else.

All people seeking a divorce must be separated for at least 12 months before an application can be filed. In addition, one spouse must be an Australian citizen, or live in Australia and regard Australia as their permanent home, or ordinarily live in Australia and have done so for at least 12 months before they file an Application for Divorce. Once the Application for Divorce has been heard and determined by the Court, a Divorce Order will be granted, which takes effect one month and one day following the Hearing.

Child Support 

The duty to financially maintain a child extends to each recognised parent of the child, regardless of their relationship status. In the absence of a private agreement between parents with respect to child support, known as a Binding Child Support Agreement, child support payments are administered by the Department of Human Services. The amount of child support payable is calculated using a formula, which takes into account, amongst other factors, the parents’ respective incomes and the time a child spends with each parent. 

Assisted Reproduction 

In Australia, a person who gives birth to a child born as a result of Assisted Reproduction Technology (such as IVF) is the mother of that child. In addition, the partner (whether de facto or married) of the birth mother who has used Assisted Reproduction Technology to conceive is a legal parent of a child born provided that they consented to the procedure occurring and is recorded on the child’s birth certificate.

A sperm donor who donates to a person who is in a de facto relationship or marriage is not presumed to be the parent of any child born as a result of the donation. Some parents may want the donor to be involved in the child’s life, while others would prefer no involvement. Donor agreements, although not legally binding, are helpful documents to record the intentions of the parents and/or donor about the role of the parents and the relationship, if any, that the donor is to have with the child.

It is important to know that if a donor does have a relationship with a child, this may be grounds to apply to the Court for parenting orders in relation to the child.

To find out how we can help you, email [email protected] or call 03 9870 3252 for a confidential discussion with Fiona who is an experienced family lawyer in Ringwood.