Same-sex and heterosexual defacto relationships share many of the same legal rights of married couples.
A defacto relationship describes a relationship between two people who aren’t married but live together as a couple. The same laws apply to same-sex and heterosexual couples.
In Queensland, defacto couples can register their relationship.
If you are unsure of your rights as a defacto couple, get legal advice.
A defacto relationship describes a relationship between two people who are not married but who live together as a couple. The same laws apply to same-sex couples as heterosexual couples.
There’s no single legal definition of a defacto relationship as there are different requirements for different legal purposes.
Disputes about children
The same family law applies to disputes about children—whether you are married or in a defacto relationship. See children and parenting.
If your defacto relationship (including same-sex relationships) ended on or after 1 March 2009 you may be able to apply for a property settlement under the Family Law Act if:
- you lived together as a couple for at least 2 years, or
- there is a child from the relationship, or
- you or your ex-partner made substantial contributions (financial or otherwise) to the relationship.
If you lived in Western Australia (WA) for part of your relationship, you should get legal advice. See dividing your property.
A same-sex relationship is recognised as being between 2 people of the same sex.
Since 2002, same-sex couples have been recognised under the legal requirements for defacto relationships in Queensland. In 2008, the Australian Government removed discrimination against same sex couples and their children in areas such as:
- superannuation schemes
- social security
- veterans’ entitlements
- workplace relations
- workers’ compensation
In Queensland, same-sex couples are entitled to legal rights including dividing property.
From 9 December 2017, sex or gender no longer affects the right to marry under Australian law and same-sex marriage is legal in Australia.
All same‑sex married couples (including those who married overseas before 9 December 2017) are, from 9 December 2017, married couples for the purposes of family law.
This may have some implications for same‑sex couples who were married overseas and who had pending family law proceedings on 9 December 2017, who are parties to a financial agreement made before 9 December 2017, or who were benefiting from a maintenance order from a previous relationship. More information is available on the Australian Government Attorney-General’s Department website. You should get legal advice.
Same-sex defacto relationships are recognised as defacto relationships for some legal purposes. Couples can jointly own property, and have the same rights to property settlement as other defacto couples in Queensland. Couples can leave property to each other in their will and can appoint each other in a power of attorney or statutory health authority.
A defacto couple (including same-sex couples) are considered spouses under laws about wills, which are called intestacy rules. See Wills and deceased estates.
Same-sex married couples, including those with existing civil unions and overseas marriages at 9 December 2017 should seek legal advice about succession planning. See Wills and deceased estates.
Domestic violence protection orders are available to same-sex couples.
Same-sex married couples may, from 9 December 2017, be able to legally adopt a child in Queensland. Same-sex couples wishing to adopt should get legal advice. Same–sex couples can be considered as foster carers.
This information applies to birth mothers in Queensland who are in a same-sex un-married relationship with a female defacto partner.
If they consent, the birth mother’s female defacto partner can be recognised as a parent if the couple’s child has been born using a fertilisation procedure, such as in vitro fertilisation.
On the child’s birth certificate the parents will be recorded as ‘mother’ and ‘parent’. If the birth was registered without the mother’s female defacto partner recorded as ‘parent’, they can then apply to correct the birth register to include the parent’s name through the Registry of Births, Deaths and Marriages. You’ll have to pay a fee.
If the father was recorded on the child’s birth certificate, then it can only be changed if there is a court order by the Supreme Court of Queensland. You should get legal advice.
Birth mothers who are married to a same-sex partner should get legal advice about whether the parentage presumptions apply.
In Queensland, defacto couples can register their relationship (called a civil partnership). This can be done as a sign of commitment or for legal reasons. A registered relationship isn’t the same as a marriage. A civil partnership ends if either party marries.
For more information, visit the Queensland Government website.
Do I need legal advice?
You may need legal advice if you’re in, or have been part of a defacto relationship and have questions about:
- property disputes with your ex-partner
- leaving property to your partner in your will
- domestic violence protection orders
You may need legal advice if you are in, or have been in, a same-sex married relationship (including, if you married overseas before 9 December 2017), and have questions about:
- property disputes with your ex-partner where proceedings were started before your overseas marriage was recognised on 9 December 2017
- presumptions of parentage where you are a woman who is married to another woman
- your will and estate planning
Get legal advice
We may be able to give legal advice about married and defacto (including same-sex) couples’ rights in some areas of law. We can’t give advice about wills.
The following organisations may be able to give legal advice.
Community legal centres — give legal advice on a range of topics. Contact them to find out if they can help with your matter.
LGBTI Legal Service — gives legal help and advice to clients with legal problems due to their identification as lesbian, gay, bisexual, transgender or intersex (LGBTI) or who prefer to deal with lawyers who understand these issues. The service has legal information factsheets available online.
Queensland Law Society — can refer you to a specialist private lawyer for advice or representation.
Who else can help?
These organisations may be able to help. They don’t provide legal advice.
Gay and Lesbian Welfare Association — information, referral and phone counselling with a focus on the LGBTI communities’ wellbeing.
Queensland Aids Council — promotes the health of LGBTI people in Queensland.
Self-represented Litigants Service (SRLS) — gives help, advice and support to people representing themselves in civil cases in the Brisbane Supreme and District Courts.
Supreme Court of Queensland — can make orders to change a child's birth register.