Same Sex Separation Rights

What are same sex separation rights in Victoria? Is a question we are asked by people seeking clarity on same sex relationship break up entitlements. This can be a complex issue, but we will try to provide some answers in this article.

Financial Issues

Provided that separation has occurred after February 2009, financial issues in same-sex relationships are treated no differently to when a separation occurs in a heterosexual relationship. Our experienced team can assist you in all aspects of financial issues arising out of your relationship breakdown, including the following:

  • Division of assets/Property settlement
  • Protection of assets
  • Binding financial Agreements, including entering into a ‘pre nup’ before or during a relationship
  • Child Support Issues
  • Maintenance issues (ie: obtaining or providing financial after separation, including ongoing financial assistance)
  • Parenting issues, including in relation to ‘non-biological parents’, surrogacy, IVF, donor insemination and self insemination.

Children’s Issues

In light of the ever evolving nature of reproductive technology, it is important that partners in a same-sex relationship understand the legal position of their relationship with any child which has been conceived as a result of surrogacy, IVF and the like.

In addition to the legal implications of someone being deemed a legal parent, there are also practical implications that one needs to consider. For example, if you are not deemed to be a legal parent, your partner may be able to obtain a passport for the children without your consent. Difficulties may also arise in you liaising with Centrelink or Medicare. The family law team at Glezer Lanteri can assist you to make decisions which are appropriate for you and your family in relation to this complex aspect of Family Law.


Q: I was in a same sex relationship for numerous years. My partner and I agreed to use IVF to conceive a child, using my partner’s egg and donor sperm. My partner gave birth to the child. Three years have since passed and we are considering separating. Will the child have to live with my partner because she is the biological parent?

A: Your partner will be presumed to be a legal parent as she gave birth to the child. If you consented to the procedure and were in a de facto relationship with your partner when the procedure was undertaken, you will also be considered to be a legal parent.

In any event, even if you were not a ‘legal parent’, this would not preclude you from seeking for the child to live with or spend time with you. The Court will consider what is in the child’s best interests.

Q: My friend has agreed to be a surrogate so that my partner and I can have a child. We are using a donor egg and my sperm. Will my partner and I automatically be seen as the child’s parents?

This will depend on the circumstances. A woman who gives birth to a child is presumed to be the child’s mother. If that woman was married or in a de facto relationship at the time of the procedure, and her partner consented to the procedure, her partner is also presumed to be the child’s parent. There are steps you will need to take including obtaining an Order to ensure that you and your partner and recognised as the child’s legal parents.

As you can see your rights in a same sex separation can be complex. To get the best advice contact our divorce lawyers Melbourne today on (03) 9658 7700.