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Family Law Blog

Gay Marriage – what’s your view?

Posted by on 17 Jun 2013

Gay marriage is such a hot topic right now. Just recently I had a family dinner and OMG, the discussion about gay marriage was fierier than mum’s chilli chicken! With all the recent news about gay marriage it was a topic that was inevitably going to come up but I honestly did not expect such a great divide at the dinner table on this issue.

So in the news recently, France and New Zealand passed legislation to support gay marriage. Now, Brazil has become the third and largest Latin American country to give a green light to gay marriage, the ruling drawing praise from gay marriage rights activists in Rio.

Turning to Australia, Kevin Rudd has recently expressed that he now supports gay marriage. Experts say these latest developments will affect the future of Australia's popular and political stance on the issue – the question now is will Australia follow suit and legalise gay marriage?

The topic of gay marriage has also highlighted issues surrounding the rights of same-sex couples. For example, what rights do same-sex couples have under Family Law? In a nutshell, the answer is that in Australia, the same laws apply to same-sex couples as to de facto or heterosexual couples.

A de facto relationship is defined as a relationship between two people who are not married but live together or have lived together as a couple on a genuine domestic basis. A court may not make orders unless it is satisfied that the partners have been in a de facto relationship for at least two years. This similarly applies in the case of same-sex relationships.

Recently, the Australian Government commenced reforms to address discrimination against same sex couples and their children in a wide range of areas, including social security, taxation, Medicare, veterans’ affairs, workers’ compensation, educational assistance, superannuation, family law and child support.

The reforms also affect labour laws that restrict same-sex couples from applying for carers' leave, compassionate leave and paid parental leave (PPL).

Since 1 July 2009, most children born or adopted by same-sex couples are now recognised as the children of both same-sex parents for the purposes of Family Law matters and child support issues. These changes meant that most children would have both their same-sex parents legally recognised for all family law purposes, including property and parenting disputes.

Essentially, the amendments to the Family Law Act saw same-sex de facto couples have access to the family law system upon the breakdown for their relationship. For separated same-sex parents of children born through assisted conception procedures approved surrogacy procedures or adopted children, the same child support rules would also apply. These parents will be recognised as legal parents in family law disputes relating to their children.

So, if same-sex couples and parents have the same rights as de facto or heterosexual couples and parents with regards to how their property will be dealt with or the care arrangements for the children, in the event that they separated, is it really necessary for them to be ‘married’?

What a lot of people don’t know or realise is that Australia is far ahead in recognising same-sex relationships than other countries around the world. In NSW, VIC, TAS and ACT, same-sex couples have the option to have their relationship registered with the state’s Registry of Births Deaths and Marriages and for a small fee can be issued a certificate confirming their relationship. That’s getting closer to same sex marriage right?

If you have any queries concerning the rights of same-sex couples under law, our friendly Coleman Greig Family Law team will be happy to assist. Phone (02) 9635 6422 or email



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