From 9 December 2017, the right for couples to marry in Australia was no longer restricted by sex or gender. Same sex couples are now able to access the marriage and divorce regime set out in the Family Law Act 1975 (Cth).
This means that family law in Australia applies equally to both heterosexual couples and same sex couples. This is the case for both married and de facto relationships.
Same sex marriages that have been solemnised and are valid in a foreign jurisdiction may now also be recognised in Australia, irrespective of when the marriage took place. This means that same sex couples who were married overseas may now automatically be considered legally married in Australia.
As with most things, there are exceptions – for example, where either party at the time of the overseas marriage was a party to a marriage with another person which was at the time, legally recognised in Australia; or where a party to an overseas same sex marriage subsequently entered into a valid marriage in Australia.
The legalisation of same sex marriages in Australia, and the retrospective recognition of same sex marriages that took place in other jurisdictions, brings about important legal considerations.
If you are in a same sex relationship it is important to understand some of the immediate effects of the reforms, so you can ensure your legal affairs are appropriately managed. This includes reviewing your estate planning and other documents.
If you are uncertain about the validity of your previous marriage under Australian marriage laws, and how they affect your will or other legal affairs, you can discuss your concerns with a lawyer.
Separation and divorce
If you are separating from a same sex relationship you have the same parenting, property and financial settlements rights as people in a heterosexual relationship.
A divorce may be granted provided the separating couple meet the requirements under family law. Generally, the court must be satisfied that:
- the marriage has irretrievably broken down;
- the parties have lived separately and apart for a continuous period of 12 months; and
- there is no reasonable likelihood the parties will live together again.
If the marriage has been for less than two years, a certificate from a family counsellor confirming that the parties have considered reconciliation must be provided. The certificate is not required where extenuating circumstances exist, such as domestic violence.