In these uncertain times Mathews Family Law continues to be available to provide you with family law advice and support
Mathews Family Law & Mediation Specialists have created many detailed articles answering the most common questions people have in relation to their rights and Australian Family Law.
Vanessa Mathews is a Fellow of the International Academy of Family Lawyers (IAFL).
Vanessa joins with the IAFL in welcoming the following four major developments in recognition of
LGBT rights in the Asia Pacific region, as summarised by the IAFL:
‘In September 2018, the Supreme Court of India unanimously ruled to decriminalise
homosexual sex in a landmark judgment for gay rights in that country, the world’s most
populous democracy. The Indian Supreme Court declared unconstitutional a 160-yearold law banning homosexual activity, stating that the provision of the criminal code amounted to discrimination on the basis of sexual orientation and was illegal.
In December 2018, in a landmark decision, the Singapore High Court allowed the
adoption of a child of a gay male couple born with a surrogate by the child’s own
biological gay parent on the basis of the need to promote the welfare of the child and
regard it as paramount despite other public policy.
On 17 May 2019 Taiwan’s parliament became the first in Asia to legalise same-sex
marriage, after the Taiwanese Constitutional Court in 2017 ruled that the constitutional
right to equality and freedom of marriage guaranteed same-sex couples the right to
marry under the Taiwanese constitution.
Most recently on 6 June 2019, the Hong Kong Court of Final Appeal unanimously
granted a same sex-couple who had validly married in New Zealand, the same right to
employment and tax benefits that an opposite-sex married couple has under Hong
Kong law. The Court held that it is circular logic to justify the restriction of these
benefits to opposite-sex married couples simply because heterosexual marriage is the
only form of marriage recognised in Hong Kong law. It uses the fact that the couple has
a different sexual orientation from others as the very justification to deny them equality,
despite their analogous position.
The IAFL is an international organisation of over 820 practising lawyers from 58
countries who are recognised by their peers as the most experienced and skilled family
law specialists in their respective countries. The IAFL reaffirms our support of efforts
towards ensuring human dignity within all relationships, full equality of the LGBTI
community and in issues concerning marriage, families, parenting and ending domestic
violence throughout the world.
While these legal changes are all different in their reach, they will improve the rights of
LGBTI people in each of these jurisdictions. The IAFL especially welcomes these
measures in the Asia Pacific region, where issues of criminalisation of and discrimination
against LGBTI people continue to be of concern in some jurisdictions. We call on all
governments in our region to review their laws in relation to LGBTI people and their
The International Academy of Family Lawyers, of which Vanessa Mathews is a Fellow, has published a global survey of Lesbian Gay Bisexual Transgender laws (LGBT laws), the results of which can be found here https://www.iafl.com/media/5336/2019-iafl-lgbt-survey.pdf.
The IAFL LGBT Committee stated ‘Laws affecting LGBT people vary greatly by country or jurisdiction. There are now 28 jurisdictions that accept same sex marriage, however gay sex remains illegal in many jurisdictions with the death penalty still applying in 14.
The International Academy of Family Lawyers (“IAFL”) supports all efforts towards full equality of the LGBT
community throughout the world and the end to rules that unfairly discriminate against such individuals and, in
many countries, criminalize countless couples because of the ones they love. There remains a lot of work to be done.
The work done by some fellows of the IAFL is having a real impact and changing for the better the lives of LGBT
people. The LGBT Committee of the IAFL commissioned this survey to capitalize on the knowledge and expertise of
some members for the benefit of the IAFL as a whole and the LGBT community.
The individual submissions in this survey are the work of fellows of the IAFL who have kindly donated their time and
expertise to answer the same questions as set out below. Each of the contributor’s names and contact details are
The LGBT Committee intends that this should be a living resource. We are asking those who have already kindly
donated their time to keep us informed as laws change in their jurisdictions. We have detailed submissions from 46
jurisdictions, however, there remains a good number of jurisdictions not covered where the IAFL has fellows. If your
jurisdiction is not covered and you feel able to complete a survey, please get in touch with the IAFL.’
Congratulations to the IAFL LGBT committee members for preparing such a comprehensive review of comparative laws.
Vanessa Mathews was asked by The Age what impact she thought the legalisation of gay marriage would have on family lawyers?
Click here to read the article http://www.theage.com.au/lifestyle/weddings/gay-marriage-expected-to-be-boost-for-wedding-business-20150601-ghebgd.html
Click here to read more information about same sex de facto relationships: https://mathewsfamilylaw.com.au/samesex/
A child born to a lesbian couple will generally have a birth mother and a lesbian co-mother. The current family law system recognizes the birth mother as a legal parent.
A child born to a gay couple will often have a birth father and a gay co-father, as well as a birth mother.
Alternatively, a child may have two gay co-fathers as well as a birth mother. If there is a birth father, he will be a legal parent along with the birth mother.
The lesbian co-mother or gay co-father(s) can apply to the Family Court of Australia for a parenting order, as ‘other people significant to the care, welfare and development’ of the child. But the lesbian co-mother and gay co-father(s) will be treated in the same way as a social parent is treated under the law, they will not be treated in the same way as a birth parent.
A partial resolution to this issue if for the co-parents to apply to adopt the child, this step will entitle the co-parent to many of the rights of a legal parent.
This issue is of particular concern to a gay couple who are both listed as co-fathers, neither member of the couple is a legal parent. Adoption is important in order to enable at least one parent to be a legal parent.
The Court will consider the length of the relationship, your living arrangements, how you arranged your finances and property ownership, whether there was a sexual relationship, whether or not you had or cared for children and the way you presented your relationship in public.
You can make an application for a property settlement under the Family Law Act if any of the following apply:
The same laws about property apply whether or not you were married or in a same sex relationship. You can start negotiations about property as soon as the relationship has broken down.
In a same sex relationship, you must commence property or maintenance proceedings within two years of your separation.
For relationships that break down after 1 March 2009, new laws apply under the Family Law Act.
The same legal principles that apply to financial settlements between parties to a marriage are now applied to settlements between same sex couples.
Superannuation can be split between same sex couples following their relationship breakdown. Spousal maintenance can also be ordered.
Cases between same sex couples pertaining to their legal or adopted children have been regulated by the Family Law Act since 1988.