Summary

You and your former partner might have separated, but in the eyes of the law you still share rights and responsibilities for your children.

For same-sex couples with children conceived through assisted reproduction technology, separating can raise particular issues around who is legally considered to be the parents of their child. 

In this update, we look at why same-sex couples who separate need to ensure that they are both legally the parents of their child, and briefly outline the Family Court's approach to parenting arrangements when separating parents cannot agree a way forward.

When a relationship breaks down, the law presumes that both parents have equal shared parental responsibility for their children. This means that both parents have the legal right to make decisions in relation to things like their child's schooling, medical care, religion etc.

In addition, parents have an ongoing obligation to financially support their children after separation. The partner who has the primary care of the children may apply for child support from the other partner through the Child Support Agency.

For same-sex couples with children conceived through assisted reproduction technology, separating can raise particular issues around who is legally considered to be the parents of their child, and it is important for same-sex couples to ensure that both partners are the "legal parents" of their child.

Are you legally a parent?

This sounds like a strange question, but it can have huge implications for couples who are thinking of beginning or extending their family through assisted reproduction technology.

If this situation applies to you, don't forget to make sure that you will be the "legal parent" of your little bundle of joy. Being a legal parent is very important, as it gives you the right to make key decisions for your child, for example if you are not your child's legal parent, you may not be able to make decisions about emergency medical treatment in the absence of the biological parent.

For de facto couples (lesbian and heterosexual) where the wife or female partner gives birth to a child as a result of an artificial conception procedure, the couple are legally considered to be the child's parents, provided that the other partner consented to the procedure. It does not matter whether both partners are female or whether either one of the couple is actually the child's biological parent.

By contrast, the law does not recognise sperm donors as fathers, despite any intentions to the contrary by the parties involved. This has obvious implications for gay males and other couples who have a child via a surrogate. For couples in this situation, it may be appropriate to obtain parenting orders once your child is born in order to legally formalise your shared parental responsibility.

How does the Family Court approach postseparation parenting arrangements in the absence of agreement?

The Family Court's primary consideration in this situation will be what is in the best interests of the children. In the short term, this will usually mean that the Court will look to give the children stability, and for them to live with the parent that was their primary care giver throughout the relationship.

Of course children have the right to have a meaningful relationship with both of their parents, and the Court must decide how to arrange this in the context of the parent's separation. Every family is different, and there is no "one size fits all" approach to parenting arrangements. Much will depend on the relationship of the parents, the age of the children and the practicalities of them spending time in two households.