Laws Applying to Same Sex Relationships

When are Same Sex relationships legally recognised



Same Sex Couples must navigate a minefield of the wide variety of various Federal and State laws which apply to them.

This is because the Federal Government has the power to make some laws for some areas, but they have given power to each individual State and Territory to then make laws for some other areas to apply within their individual State or Territory.

Since the States and Territories do not have to consult each other, or make their laws the same, different laws apply to some areas depending on which State or Territory you live in.


Same Sex Relationships: Federal Laws or State Laws?


Federal laws are those laws that apply Australia wide. State laws are those laws that apply in each particular State for things in that State.

Whether something is a State law or a Federal law depends on whether it is an area that the Australian Government can make laws for, or whether it is an area that each State has responsibility for.

The Australian Federal Parliament passed laws recognising same-sex couples in Federal law In November 2008.




This means at least as far as Federal law is concerned, that same sex couples have the same rights as unmarried heterosexual couples.


Same Sex Relationships: Federal Law Areas

Federal law areas include (amongst other things) taxation, social security, defence, immigration, bankruptcy, currency, copyright, foreign affairs, postal & telecommunication services and more recently for some states only, family law.

This means that in Australia in those areas such as taxation, social security, defence, getting married, bankruptcy and foreign affairs, same sex relationships are legally recognised.


Same Sex Relationships: State Law Areas

State parliaments make laws which apply to areas of State law.

Areas of State law include Education & Schools, Criminal behaviour & Police, Transport, Community Services, Consumer Affairs, Ambulance Services, Hospitals and Utilities such as Electricity and Water Supply.


Same Sex Relationships: Family Law

Family Law property settlement for de facto couples including same sex couples was an area of State authority, however in about 2009, all Australian States except Western Australia, gave up their power to make “Family Law” for those couples and gave their power to the Australian federal government instead.

Accordingly, the Family Law Act 1975 was amended some years ago to recognize couples in same sex relationships.

The definition of “de facto” in the Family Law Act includes those in a same sex relationship.

Accordingly for couples in every Australian State except Western Australia (where state law applies), the Family Law Act will apply, if the relationship of a same sex couple broke down after:

  • 1 March 2009 for residents of Queensland, New South Wales, Australian Capital Territory, Victoria, Tasmania and the Northern Territory;
  • 1 July 2010 for residents of South Australia.

This also means that under the Family Law Act, same sex couples can enter into Binding Financial Agreements, which include Cohabitation Agreements and Financial Agreements after separation.

If a couple separated before the date above that applies to them in the state they are living in, then state law applies to their property settlement.


Same Sex Relationships – More Information

If you want to find out about registration of a Same Sex Relationship read our information sheet How do I register a Same Sex Relationship and do I need to.

Read more about Marriage and Civil Unions for Same Sex Couples in the information sheet We’re in a Same Sex Relationship – Can we have a Civil Union.

The laws about fostering or adopting children for same sex couples is explained in our information sheet We are a Same Sex Couple – Can we Foster or Adopt Children.

Find out more about having a baby through artificial insemination in the information sheet Using Artificial Insemination to have a baby in a Same Sex Relationships.

You may have acquired some assets or got yourself into a position where you are earning a very good wage. The information sheet Should I enter into a Binding Financial Agreement to protect myself may provide some helpful information for you.

If you are thinking about entering into a Cohabitation Agreement with your partner, read the information sheet What type of Binding Financial Agreement do I need for more information.


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