Australian Family Lawyers

LGBTQ+ individuals and families face unique challenges when navigating the family law system. From establishing parental rights to the best way to separate, you need the right legal guidance so you can achieve the best results for yourself and your family.

It’s also important to have a team of professionals who understand and respect your lived experience. At Australian Family Lawyers, we’re committed to protecting your rights under Australian Family Law. But we’re also committed to handling all your matters with compassion and care, no matter how your family is structured or created.

Divorce & Separation for LGBTQ+ Couples

Since all couples have the same rights and responsibilities under Family Law when it comes to marriage, then it makes sense that all couples have the same rights and responsibilities under Family Law when it comes to divorce and separation.

So, what are those?

Separating as an LGBTQ+ couple

Whether you’re married or in a de facto relationship, or whether you’re a same sex couple or not, the legal process for separation is the same. You simply need to decide that you wish to end the relationship, inform the other person (who does not have to agree) and then act on that decision.

It’s just as straightforward as it sounds. You don’t need to formally notify anyone or take any legal steps. You can even continue to live together as long as you make it clear through some action that your relationship has ended.

Divorcing as an LBGTQ+ couple

Unlike separation, divorce has more steps and processes to jump through. Because it’s a formal end to marriage, if you are legally married, regardless of the structure of your relationship, then you will need to be formally divorced.

The actual divorce process in Australia is fairly straightforward as well. Divorce under the Family Law Act is on a no-fault basis. The only requirement necessary is to show that the marriage has irretrievably broken down. And you do this by showing that you’ve been separated from your spouse for a period of 12 months and that you have no chance of reconciliation. Your ex-spouse also doesn’t have to agree to a divorce either.

There is one additional requirement – if you’ve been married less than two years, you’ll also be required to attend counselling with your ex-partner before divorcing.

Financial settlements & parenting arrangements for same-sex couples

While divorce is fairly straightforward, financial settlements, asset division, child matters and even spousal maintenance can be a little more complicated.

Financial settlement & asset division

Property settlement can take a fair amount of time, so though you don’t have to have this settled prior to your divorce, it’s a good idea to get started on it as soon as possible. Most couples have some shared property – both assets and liabilities. And most of this (but not all of it) will be part of the marital property pool. For example, property that was acquired prior to the marriage or start of the relationship or after you have separated may be retained by the relevant party.

There are many factors and considerations that go into how your property will be divided. These apply equally for same-sex marriages.

Child matters

Parenting arrangements also follow the same legal rules and processes for same-sex couples under Family Law. For every family, the legal framework in Australia is set up to ensure the best interests of your child.

Absent any court orders giving one parent sole parental responsibility, both parents, whether married, divorced, or separated, have shared parental responsibility for their children. This of course, includes same-sex parents.

One of the most important parts in child custody matters is who your child will spend time with or live with. Often, parents believe that because they have shared parental responsibility, that means that they have the right to equal time with their children. But this is not always true. It’s also important to understand that there is no presumption in favour of the biological parent to have more custody or time with any children. In making all these decisions, the Court will always look at the best interests of the child.