Over the past decade or so, the Australia family law system has undergone significant transformations to mirror the evolving societal attitudes towards equality and human rights.
One of the most important aspects of this legal evolution has been the recognition and inclusion of same-sex relationships in the family law legislation.
While these changes are positive, the road to equality and inclusion has been challenging and taken a long time.
In this article, we’re going to provide you with a brief history of marriage equality and the recognition of same-sex relationships, as well as answer some of the most common questions, we as family lawyers are asked about same sex marriage and divorce.
The road to marriage equality
Gay marriage in Australia was legalised in 2017. This recognition came after many attempts to legalise same sex marriage by Parliament members. In fact, more then 20 bills to legalise same sex marriage were introduced between 2004 to 2017.
Marriage in Australia is governed by the Marriage Act 1961, which is federal legislation. Before its amendment in 2017, some states and territories attempted to legalise same sex marriage themselves, such as the Australian Capital Territory, where the Marriage Equality Act 2013 was passed. However, due to marriage being governed by federal laws, the high court overruled these attempts, including the ACT’s.
The Australian federal government was slow to act on granting this equality, even actively changing the Marriage Act in 2004 to include the wording of “the union of a man and a woman” where prior to that, gender was not included in the Act.
Prior to the 2017 amendments to the Marriage Act, same sex couples did have some legal protections and recognition as states and territories allowed de facto couples to register their relationships, including same sex relationships. They were able to do this as the federal government does not have power over de facto relationships.
While these legal protections provided some solace for same-sex couples, for equality to truly exist, legalising same sex marriage was the only way to do so. This is because in order to be granted the legal protections of a de facto relationship, the relationship must be proven to exist unlike in marriage, where there is no need to prove the existence of the relationship and protections are automatically afforded.
After many years and many attempts to legalise same-sex marriage, in 2017 the Australian public was asked their opinion via a postal survey about whether law should be changed, and same-sex marriage should be legalised. Over 60% of the returned votes supported this and eventually the Marriage act was amended to define marriage as the union of two people rather than just a man and a woman.
How does same-sex marriage work in Australia?
The process of getting married for same sex couples in Australia is the same to that of opposite sex couples. The couple can choose to have a civil or religious marriage ceremony and choose a celebrant to conduct the marriage ceremony. A notice of intended marriage form must also be submitted to the celebrant at least one month prior to the wedding.
There are some legal rules around marriage generally in Australia, and these apply to all couples, including same sex couples, and they are:
- Both parties must be at least 18 years of age;
- Neither party cannot be currently married;
- Both parties must freely and voluntarily consent to the marriage; and
- You cannot marry a first degree relative, like a grandparent, parent, child, or sibling.
If any of the rules above are broken, the marriage is likely to be considered invalid.
Once married, same sex couples will have the same legal rights and recognitions as heterosexual married couples.
How do same-sex couples get divorced in Australia?
The end of any relationship is tough and as a result, a lot of things need to be sorted. These things usually fall into two main categories, either parenting or property matters. Making these decisions and coming to agreements can be pretty challenging and we’ll talk about that shortly, but first, let’s talk about how you actually get divorced in Australia.
The divorce system in Australia is a “no fault” divorce system which means that neither party needs to prove that the actions of one party to the marriage caused it to breakdown, rather you just need to show that there is no chance of reconciliation. This is usually demonstrated by a 12-month separation period that must occur before a divorce can be applied for.
In addition to showing that there is no chance of reconciliation, as part of the divorce process, you will need to prove that you were legally married, which is usually done by providing a valid marriage certificate.
You can apply for a divorce online and this can be done in a joint application or a sole application. A joint application is where both parties to the marriage apply for divorce, while a sole application involves only one party applying for divorce. The sole application will require additional steps, including serving divorce papers to your former partner.
The process is the same for all married couples in Australia, including same sex couples.
Matters that need to be resolved due to divorce or separation.
As we mentioned earlier, when a couple separates and/or divorces, they need to make a lot of decisions and sort of various matters, which mainly fall into the categories of parenting or property matters.
Whether you’ve ended a heterosexual, same sex or LBGTI+ relationship, these matters need to be sorted out and you have challenges. We’ll look at parenting and property matters in more detail now.
Parenting matters and same-sex divorce
If there are children of the relationship, upon separation, the parents must make appropriate parenting arrangements for their children.
This usually involves creating a parenting plan which outlines how the parents will care for the children moving forward. It may include living arrangements as well as details about various activities the children may participate in, and communication between the parents and children. Parenting arrangements can be a plan as we mentioned above, which the parents can agree to together, they can also be consent orders or parenting orders made by court order. Consent orders involve formalising your agreement or parenting plan to make it legally binding, while court ordered parenting orders are usually created when the parents are unable to come to any agreement for their children.
Another important aspect of parenting after separation is parental responsibility. Under the Australian family law system, parents have parental responsibilities for children under the age of 18. These responsibilities relate to have the authority, power, and responsibility to make decisions for the children regarding major issues, such as their education and health care matters.
Under the family law system, there is a presumption that parents share this responsibility equally, which means that parents must make a genuine effort to come to agreements regarding these major issues together. This is believed to be in the best interests of the child, which is a key factor in all decisions made that may impact children under the Australian family law system.
Though parents have equal parental responsibility, this does not mean that they have equal time with the children. The amount of time a child spends with their parents, amongst other things, will need to be worked out on a case-by-case basis as so many factors unique to your family’s situation can impact this.
While parents need to work out how they will parent moving forward, an additional challenge that same-sex couples (and some heterosexual or LBGTQI+ couples) could face is about the legal parentage of a child.
Families come in all forms and can be created in various ways, including through adoption, surrogacy, artificial insemination, and sperm donors, and it is very important to ensure it is clear as to who has legal parentage of a child.
Whether a person is a child’s parent biologically doesn’t matter in terms of their ability to take care of a child, however, their legal parentage could be impacted depending on the way the child was created. The legal parentage could also be impacted depending on the state or territory you’re in as well, as the rules may differ by location. For example, the way surrogacy is handled in New South Wales is different to that of Western Australia.
Whether you’re in a same-sex relationship or heterosexual relationship, if you’re considering having children via adoption or surrogacy, we highly recommend seeking legal advice from an experienced family lawyer in your area to ensure you understand how parentage works.
Property settlements and same sex divorce
A property settlement is the legal process of dividing assets and liabilities between parties following the breakdown of a marriage or de facto relationship. The aim is to achieve a fair and equitable distribution of property, including real estate, investments, financial assets, and personal belongings.
A property settlement can be applied for by either party of the relationship, but there are time limits associated with this. For de facto couples, they have 2 years from the date of separation to apply for a property settlement, while married couples have 12 months from the date of the divorce being granted.
For couples who are planning to divorce, if you’re currently separated, you can apply for a property settlement and do not need to wait the for the 12-month separation period to have been completed.
Prior to the gay marriage being legalised, same sex de facto couples could apply for a property settlement if they could prove their relationship. Proof of relationship required meeting any of the following conditions:
- Have been in a genuine domestic relationship for at least 2 years; or
- Have a child together; or
- The relationship is registered in the state or territory you live in.
Now that gay marriage is legal, the rules around property settlements are the same for same sex married couples as they are for all other married couples.
Working out a property settlement can be difficult and contentious. It involves identifying and valuing all the assets and debts owned by both parties, considering their financial and non-financial contributions during the relationship, and assessing their future needs and circumstances. Couples can work this out between them and keep it informal or they can make an agreement and formalise it through a property consent order, or if they are unable to reach an agreement, they can apply to the court for orders that outline how the property will be distributed.
Before agreeing to any property settlement, we recommend seeking legal advice from a family lawyer. Many aspects of a property settlement can be overlooked, and the end of a relationship is often a stressful and emotional time. Having someone work with you to ensure you’re getting a fair agreement can make it a lot easier to manage.
Same Sex Family Law Matters
Whether you’re considering marriage, parenting, separation or divorce and you’re in a same-sex relationship, here at Clarity Lawyers, we’re here to help you.
Based in Newcastle and Maitland, we offer our family law services not only locally but also Australia-wide.
You can discuss your situation with us during a no-obligation consultation. Get in touch with us by calling us on 02 4023 5553 or book a consultation here.
