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Same Sex Marriage and Family Law

In December 2017, the Marriage Act 1961 was amended so that the definition of marriage is now ‘the union of two people to the exclusion of all others, voluntarily entered into for life.’ The change followed a long debate over same sex marriage. Same sex couples who have married, whether in Australia or overseas, are now recognised as married under the Family Law Act 1975.

From 2004 until the 2017 amendment, marriage had been restricted to unions ‘between a  man and a woman.’ This definition was introduced by the Howard government in 2004 in response to some Australian same sex couples marrying overseas and seeking to have their marriages recognised in Australia. The return to a definition of marriage that is not gender specific follows a national postal vote on the question, ‘Should the law be changed to allow same sex couples to marry?’ The vote returned a majority vote of yes, with 62% of Australians voting for same sex marriage.

Many areas of family law operate in the same way regardless of whether parties are married or in a de facto relationship. This is the case for parenting matters and for some property matters. Same-sex couples who have married in Australia since the 2017 amendment to the Marriage Act and same-sex couples who married overseas prior to the amendment (“pre-commencement married couples”) will now be subject to the provisions of the Family Law Act relating to married couples.

Same sex marriage and the divorce system

Since the amendment of the Marriage Act, same sex married couples have had access to the divorce system in the same way as different sex couples. For any couple to get divorced they must demonstrate that the marriage has broken down irretrievably. This requires the parties to have been separated for not less than a year and to have no reasonable prospect of reconciliation.

Same sex couples who married prior to the recognition of same sex marriage in Australia can count the 12-month period of separation as starting before the date that same-sex marriage became legal in Australia, provided they were married at the time and there has not been a reconciliation of more than three months.

Proceedings already on foot

Same sex married couples who married prior to the recognition of same sex marriages in Australia and who already have proceedings on foot in the Family Court or Federal Circuit Court will continue as if the originating application has been an application by a party to a marriage. Everything that has occurred in such a proceeding will be treated as if it had  occurred in a proceeding relating to a married couple.

Proceedings already on foot in Western Australia

Proceedings commenced in Western Australia by same sex married couples prior to the recognition of their marriage will be transferred from the state de facto jurisdiction to the commonwealth matrimonial jurisdiction. The commonwealth matrimonial provisions are similar but not identical to the de facto state provisions. The most significant difference is that under the commonwealth matrimonial provisions, the court can effect a superannuation split as part of a property settlement.

Binding financial agreements

If a same sex married couple who married prior to the commencement of the Australian law recognising same sex marriages has entered into a Binding Financial Agreement (BFA), the BFA will continue to be valid and binding. It will simply be treated as an agreement made under the provisions of the Family Law Act relating to married couples.

Maintenance orders

If a party to a pre-commencement same sex marriage has had a maintenance order made, that agreement has now ceased to have effect. Maintenance orders cease when a person gets married.

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