Family LawNewsSame sex marriage Australia

On 9 December 2017, the right to marry in Australia was no longer determined by sex or gender and same sex marriage became legalised. This was through the Marriage Act 1961 which was updated to allow for marriage equality. The Act defines marriage as ‘the union of 2 people to the exclusion of all others, voluntarily entered into for life’.

This monumental change in legislation has afforded legal rights and responsibilities to same sex couples under Australian law. These rights range from the automatic recognition of a spouse within the State based laws relating to wills and inheritance and the ability to make a claim under the Family Law Act 1975.

Prior to the change in legislation, same sex relationships were limited to recognition as de-facto relationships. Same sex couples who were recognised as de facto partners did largely have the same rights and obligations in family law matters as legal spouses. However, this would often cause difficulties as although the legal rights of de-facto relationships mirror those of married couples, the existence of a de-facto relationship can be disputed. To prove a de-facto relationship in these situations, there is a certain criterion which needs to be met. Parties to a marriage do not face this additional hurdle and must simply provide their marriage certificate to commence property proceedings.

A de facto relationship is defined in Section 4AA of the Family Law Act 1975. The law requires that you and your former partner, who may be of the same or opposite sex, had a relationship as a couple living together on a genuine domestic basis. The criteria to be met is including but is not limited to the extent of the party’s financial interdependence, the length that the couple have lived together (generally 2 years or sooner if you have children and/or other exceptional circumstances) and the public appearance of their relationship.

When a dispute arises with respects to the existence of a de-facto relationship, parties are required to disclose the intimate details of their relationship so that the Court may forensically assess whether they met the criterion. This was an extra hurdle required for same sex couples who may have otherwise been married.

Additionally, the Act was further amended to provide for same-sex marriages validly entered in other countries to be recognised under Australian law. This means that any same sex couples who married in a foreign country prior to the 2017 amendments can apply for divorce in Australia. The Act also recognises all same sex divorces granted overseas prior to the 2017 amendments.

SLF Lawyers provides comprehensive legal advice on all aspects of Family law including legal advice relation to same sex relationships.

Article written by Sonia Haidamous of or Melbourne office.