Altruistic surrogacy  is legal in all of Australia and open to same-sex couples according to the Assisted Reproductive Treatment Act, 2008 (ART) (copy of ART on the website).   You will need to find a surrogate, to actually carry the fetus, as well as an egg donor.  Australian law requires that the egg may not come from the surrogate.  The sperm donor may be you or your partner, or through an outside sperm donor.

After the baby is born, you will not automatically be recognized as the child’s parents.  According to the law, the surrogate is the child’s mother.  You and your partner will need to apply to the county or Supreme court for “substitute parenting orders”.

Same-sex couples are generally recognized as de facto couples in Australia.   Some states – the ACT, New South Wales, Tasmania, Queensland and Victoria – have a relationship registry which will help prove that you are in a de facto relationship, if necessary.   Otherwise, in most states a same-sex couple has the same rights as any other de facto couple.

Not yet.  Despite the legalisation of same-sex marriages in countries throughout the western world and a fifth of the states in the United States, lesbian and homosexual couples still can’t legally exchange vows in Australia.  And going overseas – even as close as New Zealand, which legalised same-sex marriages in April 2013 – won’t help.  The marriage certificate given abroad has no standing in Australia.

Section 88 of the Marriage Act, 1961 refers to marriages conducted abroad.  An overseas marriage is valid in Australia ONLY if it is recognised as valid in the country where it took place (ie Argentina, Belgium, Canada, Denmark, etc.) at the time it was entered into AND if the marriage would have been legal under Australian law had it taken place in Australia.  Just to be sure the point is clear,  section 88EA was amended in 2003 and clearly states that a union between two men or between two women conducted abroad “must not be recognised as a marriage in Australia”.

Many same-sex couples in Australia are now having children and building families through sperm and egg donation, surrogacy and adoption.  In many ways, lesbian couples have a simpler legal situation than gay couples if one of the women is the biological mother of the child.  But there are still complications facing them, and even more facing those couples who choose to use an outside surrogate to carry and birth their child.

The Law in Victoria

According to the Assisted Reproductive Treatment Act 2008, which was passed in December 2008 in Victoria and came into operation on 1 January 2010, both the biological mother and her female partner are considered the legal parents of the child.  The Act (s. 147) says that if a woman who is in a lesbian relationship or no relationship undergoes assisted reproductive treatment or artificial insemination, the woman’s female partner is “presumed, for all purposes, to be a legal parent of any child born as a result of the pregnancy” so long as she was the biological mother’s partner when she underwent the procedure AND consented to the procedure.  This applies whether the child was conceived with the mother’s own ovum or through donated ovum.  The Act also states that the sperm donor – whether or not the mother knows him – is presumed NOT to be the father of the child.

Federal Law

Since November 2008, federal law has recognized the rights of both partners in a lesbian relationship, regardless of who the birth mother is, the method used to conceive the child and the identity (known or unknown) of the sperm donor.  The only condition required by federal law is that the non-birth mother consented to the procedure and that the couple was in a de facto relationship.

Since the changes in legislation, the birth mother and her partner are automatically listed as the child’s parents on his or her birth certificate.  Prior to the reforms, the sperm donor could be listed on the birth certificate as a parent.   However, if a child is conceived through sexual intercourse with the donor (and not artificial insemination or another type of procedure), the donor is the child’s legal parent.  The law does not permit a third parent to be listed.

If a child was born prior to the reforms, and only the biological mother is listed on the birth certificate, the birth certificate can be amended to include the non-birth mother.   To add the non-birth mother, a form must be submitted to the Registry of Births, Deaths and Marriages and both mothers must sign a declaration that the non-birth mother consented to the procedure.  If the child was born prior to the reforms and the sperm donor is listed as father, his name will have to be removed and then the non-birth mother’s name added.  This requires a County court order.

Simply put, both federal and state law make both members of a lesbian couple the legal parents of the biological child of one of the women.  This means that both mothers have all legal obligations, rights and responsibilities to their children according to Australian law, including maintenance, custody and child support.

Throughout the world, same-sex marriage is being legalized.  Eleven countries, including South Africa, Argentina, Belgium and Spain, now recognize same-sex marriages.  Nine states in the United States have legalized it.  Most recently, New Zealand legalized marriage between members of the same gender, a vote that was wrought with so much emotion the parliament literally erupted in song.  Some Parliament members in Australia are calling for marriages conducted in New Zealand to be recognized in Australia.

Australia is not quite there yet.  In 2009, the first bill for same-sex marriage was brought before the federal parliament in Australia.  That bill, and the one brought in February 2010, did not pass.  Most recently, in September 2012, two bills permitting same-sex marriage were defeated in both houses of the Parliament.  The Prime Minister, Julia Gillard, supported the bills but allowed members of the ALP a conscience vote.

It’s not clear when, but same-sex marriage in Australia is headed toward legalization.  Public opinion is strongly in favor.  In a recent poll taken by the Essential Report, 54% of Australians said they thought same-sex marriage should be allowed, with only 33% saying that it should not be permitted.  Interestingly, 62% of women polled supported it while only 46% of men said same-sex marriage should be legal.  Once legal recognition comes, the laws applying to heterosexual marriages will also apply to same-sex marriages.  For better or for worse….

Marriage between two members of the same gender is not legally recognized in Australia.  All of Australia grants rights to same sex couples in de facto relationships.  Some states, like NSW, Tasmania and Victoria have domestic partnership registries.  In Queensland, parties can enter into a civil partnership.

In 2004, the Australian government amended The Marriage Act 1961 to define marriage as a union between a man and a woman.  Despite this, in 2008 the Australian government enacted reforms which gave same-sex de facto couples the same rights and obligations as all other de facto couples.  These include areas of taxation, social security, health, elderly care, employment, veterans’ benefits and child support (several of these should have a link to another page on that particular right or obligation).  Many of the same laws apply regarding property division, maintenance and child custody for same-sex couples whose relationships break down.   This brings the 33,714 couples who declared they are in same-sex relationships in the 2011 census that much closer to legal marriage.

Some states allow same-sex couples to register their unions officially, as civil partnerships or under another name.  In Victoria, couples may register their relationships with the Registrar of Births, Deaths and Marriages.  Interstate unions, however, are not recognized in Victoria.

But a de facto relationship is not the same as a marriage.  In order to be recognized as a partner in a de facto relationship, a couple must meet certain criteria not required of married couples.  For example, de facto couples must prove they live together “as a couple”, which is determined by a list of conditions including the length of the relationship, whether or not a sexual relationship exists, the acquisition, ownership and use of property, and whether others view them as a couple.  No such requirements exist for married couples.

De Facto and Same-Sex Couples and Property

Same-sex couples, like all de facto couples, may turn to the courts for orders on division of property, superannuation and maintenance if the relationship breaks down.  The rules applying to de facto couples are somewhat different, though, than those applying to legally married couples.

Can all De Facto couples obtain these orders?

No! Couples can receive these orders from the court only if the court is satisfied that the couple meets one of the following criteria:

• The relationship was at least two years long
• The couple has a child together
• One person made significant financial or nonfinancial contributions to the marital property or as a homemaker or as a parent and would be disadvantaged if the order was not granted
• The relationship was registered (in those states and territories where such registration is possible)

Does it matter where you live?

Yes! The laws apply to de facto couples who have a geographical connection with New South Wales, Victoria, Queensland, South Australia, Tasmania, the Australian Capital Territory, the Northern Territory, Norfolk Island, Christmas Island or the Cocos (Keeling) Islands.   Geographical connection means that at the time the relationship broke down, the couple lived in one of those states or territories.

A court may still give orders on property division, superannuation and maintenance if:

(1) The couple lived in one of the above States or Territories during at least one third of their de facto relationship or;

(2)The person applying to court for the order made substantial financial or nonfinancial contribution in one of the above States or Territories or;

(3)One of the partners ordinarily lives in one of the above States or Territories at the time the application to court is made.

Does it matter when the relationship broke down?

Yes! The Commonwealth laws allowing de facto couples to divide property came into affect only on August 1, 2009 (and in South Australia only on July 1, 2010).  Therefore, in those states and territories where they apply, it’s only for couples whose relationship broke down after those dates.  If a relationship broke down before August 1, 2009 (or July 1, 2010 in South Australia), the laws of the particular State or Territory apply, unless both parties request in writing that the new laws apply.

One or both parties must apply for these orders within 2 years of the breakdown of the de facto relationship.

Can a couple make an arrangement on their own?

Definitely!  De facto couples can make their own arrangements regarding their property, including debts, assets, superannuation and spousal maintenance.  Financial agreements are covered under Part VIIIA of the Family Law Act of 1975.  These agreements may refer to:

(1) Property and financial resources and how they will be dealt with if the marriage breaks down or;

(2)The maintenance (financial support) of either of the spouses during and/or after the marriage or;

(3)Any other matter related to (1) or (2) above

This agreement can be made at any time during the relationship or after it breaks down (but you must apply for the orders within two years of the breakdown – see above)  and it can be formalised by the court by applying for a consent order.  Once a consent order is made, it has the validity and enforceability of a court order issued by a judge.  Both parties must apply for a consent court order for a property agreement by completing the Application for Consent Orders.  You do not need to go to court to apply for consent orders.

This financial agreement is only binding if: (1) both partners signed it AND; (2) both partners received independent legal advice about the agreement.   Partners are not allowed to receive advice from the same lawyer.

For further information on property division in the court see “Property and Money”.

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