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Challenges in Same Sex Relationships

Updated: Jan 28, 2021



The problems facing a same-sex couple on the breakdown of their relationship.

The issue of divorce never arises for same-sex couples, since they cannot legally marry. However, a same-sex couple, like an opposite-sex de facto couple, may need the assistance of a court to resolve property and child-related issues if their relationship breaks down.

Married, opposite-sex de facto and same-sex couples can all access the federal Family Court to resolve child-related matters. But some same-sex couples will be at a disadvantage when it comes to the determination of parental responsibility and child support after a relationship breaks down.

Only married couples can access the federal Family Court to determine how to divide the property of a relationship. Same-sex and opposite-sex de facto couples must currently go to the relevant state or territory jurisdictions to decide property-related matters. Accessing two different jurisdictions creates additional costs. In addition, state and territory jurisdictions cannot consider the same range of assets when making a property settlement. Thus de facto couples may end up with less comprehensive property settlements than those available to married couples.

New legislation proposed by the federal government should allow opposite-sex de facto couples to access the federal Family Court for property matters. However the government has indicated that this new legislation will not assist same-sex couples. If this occurs there will be discrimination against same-sex couples as compared to opposite-sex de facto couples.

Further, discrimination regarding the care of children after relationship breakdown arises because the lesbian co-mother and gay co-father of a child is not considered a 'parent' for the purposes of determining parental responsibility or child support liability.

This chapter outlines in more detail how family law discriminates against same-sex couples when a relationship breaks down. The chapter examines the human rights breaches caused by this discrimination and recommends changes to the law in order to address those breaches.

Specifically, this chapter addresses the following questions:


  • Why can't same-sex couples access the federal Family Court for property settlements?

  • How are same-sex couples worse off in property settlements?

  • Do both same-sex parents have access to child support?

  • How is parental responsibility divided between same-sex parents on separation?

  • Does family law legislation regarding separation breach human rights?

  • How should family law legislation be amended to avoid future breaches?


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At Familylaw4men, we believe that every one deserves a separation that minimises complication and paves a sound path for the future. Contact us today for assistance by email at lawyer@familylaw4men.com.au or telephone 0405240204.

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