6 Oct 2010The legal recognition and rights of same-sex couples has long been a contentious issue in Australia. Since 2009 there has been much change, with same-sex couples now having many of the same rights as heterosexual couples; although not all.
Adoption has recently received a lot of media attention. On September 9 this year, a Bill was passed in NSW which gave same-sex couples the right to adopt. Previously, gay or lesbian individuals could apply to adopt, but not couples. While same-sex couples could foster kids (in fact many foster agencies actively target gay couples), they couldn’t go on to adopt those kids. Now they can.
This is a major win for gay rights lobbyists. Only WA, the ACT and Tasmania have similar laws.
It’s the latest in a series of legal changes relating to parenting. Up until now, only lesbian same-sex couples could really have children, biologically, often via IVF. Those children sometimes lost out financially and emotionally when their mums broke up, because the non-biological mother wasn’t seen as a “parent” by law. So they didn’t benefit from the same system of child support, property settlement, or inheritance rules, as the kids in opposite-sex families.
Now they do. Since 2009 the Family Law Act has recognised both same-sex partners as parents, with the authority to make decisions about their children. If a relationship breaks down, they have access to the same family law procedures as heterosexual couples. They can apply to the Family Court or the Federal Magistrates Court to resolve disputes, and the court will apply the same principles of shared parenting and property settlement as for opposite-sex parents, focusing on what is best for the child.
Changes to the law include recognition in all financial matters for same-sex couples, such as tax, Medicare, superannuation, and child support.
The term “de facto” includes same-sex couples, who can now apply for de facto visas, or Australian citizenship, as would heterosexual couples. “Spouse” has been expanded to include same-sex de facto partners. This means that a same-sex partner will now inherit automatically if their partner dies without a Will, provided (usually) they have been in the de facto relationship at least two years.
Despite these changes, same-sex couples still can’t marry.
Male same-sex couples who wish to start a family have limited options. While surrogacy is not illegal in NSW, it’s rare. Commercial surrogacy (paying a woman to have your child) is illegal, and the birth mother is considered the legal parent.
And though the law now gives same-sex couples to right to adopt, faith-based adoption agencies can legally continue to exclude them.
While law reforms around same-sex relationships have come a long way, some issues will no doubt continue to attract heated debate.
For more information please see our 2024 article Is it legal to use a surrogate mother to have a child in Australia?
