Same-sex and de facto couples and families

The Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth) amended the FL Act with two major reforms.

First, it brought de facto (redefined to include same-sex couples) property matters within the jurisdiction of the Family Court (now called the Federal Circuit and Family Court of Australia) (FCFCOA). Couples who separated before 2 March 2009 can opt into the jurisdiction of the FCFCOA by consent. Among other advantages, this now enables same-sex and heterosexual de facto couples to benefit from the superannuation splitting provisions of the FL Act and to have the care and control of a child of the relationship taken into account in property settlements and maintenance (ss 60 EA, 60HA, 60H(1), 90RB, 90SF FL Act).

Second, the amended FL Act now conclusively presumes that the non-birth mother (‘the intended parent’) of a child born through artificial conception procedures is the parent of the child (s 60H(1)). In relation to surrogacy, if a court has made a substituted parentage order, then the child is the child of the parents named in that order (s 60HB(1)).

On 1 September 2018, the Family Law Amendment (Family Violence and Other Measures) Act 2018 (Cth) commenced. This Act seeks to improve the capacity of the justice system to provide effective outcomes for vulnerable members of the community who are experiencing family violence. The family law system’s response to family violence as well as to child protection systems has been enhanced by this Act.