Same Sex Separation & Same Sex Divorce

Those in long-term same sex relationships can sometimes end up going their separate ways, and it can be really tough, especially if there are kids in the mix. That’s why, if you and your partner decide to split, one of the first things to do is get some legal advice.

Parenting Plans

If you and your partner can work out the details for your kids and how to divide your stuff without heading to court, you have the option to create a Parenting Plan. This plan is a written agreement about your children’s arrangements, and both you and your partner sign and date it.

You can find an example of a Parenting Plan at:  http://www.relationships.org.au/relationship-advice/publications/pdfs/share-the-care-parenting-plan

Parenting plans are not court ordered and therefore are not enforceable. If your parenting plan is not being followed you should get legal advice as for what your next steps should be.

Consent Orders

If you and your ex are on the same page and want court orders for your parenting arrangements, you can file an Application for Consent Orders along with the actual Consent Orders reflecting your agreement. This allows you to establish orders detailing who your children live with and spend time with.

For property-related orders post-relationship breakdown, you must apply to the Federal Circuit and Family Court within two years; afterward, you need the Court’s permission to file an application out of time. Fortunately, there’s no time limit for applying for parenting orders.

Opting for Consent Orders is a simpler, more affordable, and amicable method for obtaining Court orders regarding your children’s arrangements. Typically, you can put together the application within a week, and once filed, the Court often approves it within a few weeks, returning the sealed orders to both parties, making them official Court Orders.

Mediation

Before initiating an application in the Federal Circuit and Family Court, unless it’s under urgent circumstances or doesn’t pertain to Consent Orders (as discussed earlier), you must undergo Family Dispute Resolution, commonly known as mediation, with your partner. However, if there is family violence, or allegations of risk, then you are exempt from this process.

The Dispute Resolution Process aims to smooth the complexities of separation, offering you and your ex-partner an opportunity to discuss and agree on various separation issues. Organisations like Relationships Australia, a government body, often conduct mediations, but it’s crucial to note that reaching mediation can take months.

For a speedier resolution, investing in a private mediator, often a family lawyer, might be worthwhile, as appointments can typically be scheduled within 1 to 4 weeks. Mediation sessions, lasting up to 3 hours, involve separate discussions with you and your ex-partner, followed by a joint session where the mediator facilitates dialogue to address concerns and reach agreements.

This informal process is less costly in terms of money, time, and emotional energy compared to Court proceedings. It provides an opportunity for both parties to achieve a mutually agreeable resolution, a positive outcome for you and your children. Resolving issues at this stage may benefit your future co-parenting relationship, and the agreement could endure over time.

If an agreement is reached, the mediator usually sends a copy of the written agreement to both parties. However, it’s important to note that this agreement is not legally binding unless documented into Consent Orders and filed with the Court. Without such documentation, there is no legal recourse for enforcing the agreement if either party finds it unworkable or breaches its terms.

In cases where an agreement is elusive or the ex-partner doesn’t participate in mediation, the mediator issues a Section 60I Certificate. This certificate is essential for filing an application in the Family Court if the dispute remains unresolved.

Each case is unique, so if you are in a same sex de facto relationship seek legal advice from a top same sex lawyer to ensure you understand your rights and obligations fully. Barker Evans have leading experience and specialist background in same sex parenting and property cases.

Federal Circuit and Family Court

After completing mediation and obtaining a certificate, the next step is to engage a family lawyer to file an Initiating Application in the Federal Circuit and Family Court.

When determining orders relating to a child with gay or lesbian parents, the legal considerations mirror those for a child with opposite-sex parents, focusing on the “best interest of the child.” Whether you’re the birth mother, biological mother, genetic mother, or the partner of the birth mother, factors like being on the birth certificate or how the child addresses you may be irrelevant. If you hold legal parent status under the Family Law Act, you have the right to file an application for parenting orders.

For lesbian couples, this will depend on whether the mothers were in a de facto relationship at the time of conception of the child, and whether each party consented to the artificial conception procedure.

Moreover, if you’re a known sperm donor you may be a person actively “concerned with the care, welfare, and development of the child,” and therefore have the standing to file an Initiating Application seeking parenting orders.

What does the Court consider?

The central considerations of the Federal Circuit and Family Court, aimed at determining the child’s best interests, encompass:

• The benefit to the children of fostering a meaningful relationship with both parents;
• The imperative to shield the child from physical or psychological harm arising from abuse, neglect, or family violence, with particular emphasis on protecting children from harm.

Additional considerations taken into account by the Court involve:

• The child’s views, considering factors such as maturity and level of understanding;
• The child’s relationships with each parent, including extended family like grandparents;
• The willingness and ability of each parent to encourage an enduring relationship between the child and the other parent;
• The potential impact on the child of altered circumstances, including separation from a parent or other significant figures;
• Practical challenges and expenses associated with the child spending time with and communicating with a parent;
• Each parent’s ability to meet the child’s needs;
• The child’s maturity, sex, lifestyle, and background, along with other pertinent characteristics;
• Acknowledgment of the rights of an Aboriginal and Torres Strait Islander child to embrace their culture;
• Evaluation of any family violence, orders, or contested matters related to family violence;
• The court’s consideration of making an order that minimizes the likelihood of future court applications;
• Any other relevant fact or circumstance as deemed by the court.

Moreover, the Court is mandated to assess the extent to which each parent has fulfilled or neglected their parental responsibilities, scrutinizing:

• Participation in major long-term decisions and spending time with the child;
• Communication with the child and meeting financial obligations;
• Facilitation or hindrance of the other parent’s involvement in the child’s life.

The Federal Circuit and Family Court’s evaluation also encompasses events and circumstances that have transpired since the separation of you and your ex-partner.

Parental Responsibility: An Equal Footing

Within the domain of the Federal Circuit and Family Court, both same sex parents are accorded equal standing as the acknowledged legal parents. This designation is confirmed if certain conditions are met, such as being in a de facto relationship during conception, consenting to insemination procedures, or having your name documented on adoption papers.

Enduring Commitment until Adulthood

Parental responsibility persists until the child attains the age of 18 and remains steadfast despite any shifts in relationship dynamics, be it separation from a partner or the initiation of a new one. This enduring commitment encompasses a comprehensive array of responsibilities, powers, and authorities mandated by law. These encompass crucial decisions like choosing the child’s school, determining the religious upbringing, deciding on medical treatments, and more.

Legal Intervention & Consent Orders

The Federal Circuit and Family Court steps in when parental accord on child arrangements proves elusive, leading to the issuance of parenting orders. These legal directives delineate the responsibilities of each parent. Furthermore, the Family Court possesses the authority to validate and formalize Consent Orders, serving as a legally binding reflection of agreements reached between involved parties at any juncture during the court proceedings.

Individuals with a Stake in the Child’s Well-being

The ambit of those who can seek parenting orders from the Family Court extends beyond parents and grandparents to anyone genuinely invested in the “care, welfare, and development of the child.” This broad category encompasses not only de facto partners and known donors but also extends to other relatives such as aunts, uncles, and extended family members.

Grandparents, under specific circumstances, hold the right to file an application with the court for orders granting them time with their grandchild. This becomes pertinent when there is limited or no interaction between the grandparent and the child’s parent. In situations where the child’s primary caregiver denies the grandparent access to the child, seeking court orders becomes the only avenue for the grandparent to establish visitation rights.

Independent Children’s Lawyer

In cases involving allegations of abuse, heightened conflict, mental health challenges, or other significant issues, the court may appoint an Independent Children’s Lawyer (ICL) to advocate for the child’s best interests.

The court’s authority to appoint an ICL stems from Section 68L of the Family Law Act 1975 (Cth) or can occur based on the application of a parent, child, organization, or individual concerned with the children’s welfare. The ICL’s role involves considering the child’s perspectives and presenting the court with their informed opinion on the arrangements that would best serve the child’s interests. Under the purview of the presiding judge, the child may be allowed to participate in the proceedings, contingent upon their age and maturity. However, this involvement is typically confined to specific processes, such as the “Family Report process.”

The Family Report

In addition to the appointment of an ICL, the Court has the authority to commission a Family Report under Section 11A of the Family Law Act 1975. Typically prepared by a family consultant, often a counsellor or psychologist, or an externally appointed expert like a psychologist or psychiatrist, this report serves as an unbiased evaluation of the case’s pertinent issues.

The Family Report plays a crucial role in aiding the judge, who, by design, doesn’t engage in separate conversations with the involved parties or the children. During the process, the report writer dedicates several hours to meet with both parents, the children, and any other relevant individuals. This comprehensive assessment aims to discern the children’s attachment to each parent and the dynamics of the relationships within the family, offering valuable insights for the judge’s decision-making on children’s arrangements.

Parenting Orders

Securing parenting orders in a same sex parenting arrangement through the Federal Circuit and Family Court can transpire either through mutual consent or by means of an application. Consent Orders signify an agreement between you and your ex-partner, while in cases of disagreement, the court steps in to issue parenting orders after evaluating the presented evidence, sometimes taking the children’s views into consideration based on their age and maturity.

Lesbians, including those with known donors, can also formalise parenting orders. These orders encompass a spectrum of issues, akin to those addressed in a Parenting Plan or Donor Agreement, allowing the court to intervene on a limited or extensive range of matters.

Parenting orders can address various facets, such as determining the child’s residence, visitation schedules, communication protocols, religious upbringing, parental responsibilities, school choices, financial contributions, travel permissions, and even restrictions on who the child can spend time with. Some orders delve into more intricate matters like hairstyles and specific places the child can visit, though enforcing such specifics can prove challenging.

Importantly, these orders persist until there’s a court-ordered modification, prompted by substantial changes in circumstances, like neglect, abuse, relocation, or alterations in the child’s wishes. Beyond preventing misunderstandings between you and your ex-partner, parenting orders offer legal security. Breaches can lead to a Contravention Application, where the court, upon confirming the breach, may impose penalties ranging from fines and compensatory time with the other parent to, in extreme cases, imprisonment, accompanied by a potential criminal conviction.

Dividing Property

Many same sex couples successfully reach an agreement on asset division without court intervention. If you manage this, it’s advisable to consult with a lawyer about formalising your agreement through Consent Orders with the Court. This step ensures that neither you nor your ex-partner can alter the terms later, providing a level of permanence. Additionally, opting for Consent Orders often exempts you from paying stamp duty on property sales or transfers.

Alternatively, if you prefer to bypass court proceedings, a Financial Agreement is another avenue. This can be established before cohabiting, during the relationship, or post-separation. Seeking legal advice is crucial for crafting a valid Financial Agreement. Both you and your partner must receive independent legal counsel, and the agreement must meet specific formal requirements to be legally binding.

For the court to address your financial dispute (particularly if no children are involved), you must present evidence satisfying several criteria. This includes demonstrating that you were genuinely in a de facto relationship that has ended, meeting one of four gateway criteria (such as a two-year de facto relationship or having a child together), having a geographical connection to a participating jurisdiction, and ensuring your relationship ended after specific dates based on the jurisdiction. It’s essential to verify the applicable date based on your state, considering you may still be eligible to apply even if your relationship ended before the designated date.

Financial Contributions

In determining the division of your property, the court takes into account several key factors:

1. Pre-relationship Ownership:
   – The assets owned individually by you and your ex-partner prior to the commencement of your relationship.
   
   
2. Net Value of Current Assets:
   – This encompasses the total value of existing assets, including properties, houses, shares, boats, cars, motorbikes, artwork, and superannuation.
   
   
3. Contributions During the Relationship:
   – Contributions made by both parties during the course of the relationship, categorized into:
   • Direct financial contributions (e.g., salary, contributions towards property acquisition, or property improvements).
   • Indirect financial contributions (e.g., gifts and inheritances from relatives).
   • Non-financial contributions (e.g., DIY renovations, contributions to family welfare, childcare, and domestic responsibilities like household chores and laundry).
     
     
4. Future Needs Considerations:
   – Future needs are taken into account, incorporating factors such as:
   • Custody arrangements for any children.
   • Relative ages and earning capacities of both parties.
   • Availability of financial resources, including income from trusts or payments made on behalf of either party by a family member.

These considerations collectively guide the court in making equitable decisions regarding the division of property.

Court Orders

After determining the allocation of assets to each party, the court proceeds to issue orders outlining the specific actions to be taken. These orders may include:

–  Sale and Division of Assets:

• Directing the sale of assets like the family home, specifying the division of proceeds, and the distribution of the assigned share to each party.

–  Transfer of Ownership:

• Mandating the transfer of asset ownership into the name of one party, such as the home shared with an ex-partner being transferred solely to one individual.
  
  

–  Maintenance Payments:

• In circumstances where your ex-partner significantly outearns you and has been providing financial support, you may have the entitlement to apply for spousal maintenance for a defined period.
• Ordering ongoing maintenance payments, encompassing spousal maintenance and/or child support, although court applications for child support are relatively rare.

–  Superannuation Splitting:

• Facilitating the division of superannuation funds, where a portion of an ex-partner’s superannuation is transferred into the other party’s superannuation fund.
• Superannuation held by both parties can undergo division either through mutual agreement or a court order.

Filing for an Application for Divorce

To file an Application for Divorce, you need to have been separated from your spouse for at least 12 months and 1 day, even if you’re still living under the same roof. Whether you apply alone (sole application) or jointly with your spouse (joint application), this legal process requires the specified period of separation.

Sole Application Process

In the event you opt for a sole application, where you file independently without your same sex spouse, you assume the role of the Applicant, while your spouse is designated as the Respondent. With a sole application, only your signature is required on the application, and a filing fee is applicable. The standard fee is $910, but you might qualify for a reduced fee of $305; eligibility details can be found in the Guidelines for fee reduction.

Following the application filing, the next step involves serving the application on your spouse, and consulting with a lawyer is advisable to understand the specific rules governing the service of an Application for Divorce.

In cases where there are no children under 18 years from the marriage, attending court is not necessary. However, if there are children under 18 years of age, either you or your legal representative will need to attend court proceedings.

Joint Application Process

In the case of a joint application for divorce, both spouses are regarded as joint applicants. The process involves one party completing the application and sharing it with the other party for review and signature. This can be done online, with the option to print the document for the other party’s review. The jointly signed application can then be submitted online, and there’s no requirement for service since it is a collaborative application. Notably, when opting for a joint application, attending court is not necessary.

Other elements to consider

For marriages lasting less than two years, a counselling certificate is a prerequisite, and additional details can be found on the Federal Circuit Court website under the fact sheet titled “Have you been married for less than two years?” To secure this certificate, attendance at counselling is mandatory, arranged by contacting the Family Relationship Advice Line at 1800 050 321.

In cases where joint counselling with your spouse is unattainable, you must file an affidavit explaining the circumstances preventing joint attendance. Even if living under the same roof while separated, you must substantiate the changes in the marriage with a filed affidavit. Particulars of care arrangements for children under 18, covering housing, care, schooling, health, parental contact, and financial support, are essential components of Part F in the application. The definition of a child of the marriage encompasses biological children born before or after marriage, adopted children, and those treated as family members before final separation, such as step-children or foster children.

Changing your name

There is no formal requirement to change your name with the Registry of Births, Deaths & Marriages if you are married. If you wish to adopt your same sex partner’s surname, presenting your marriage certificate is sufficient evidence for updating personal documents like your driver’s license and passport with your married surname.

Barker Evans is also the exclusive legal partner for Rainbow Families, assisting the LGBTQI+ community.

Each case is unique, so if you are in a same sex de facto relationship seek legal advice from a top same sex lawyer to ensure you understand your rights and obligations fully.

Barker Evans are the best family lawyers in Sydney with leading LGBTQI+ family law experience and a specialist background in same sex parenting and property cases.