On 7 December 2017, the Marriage Act 1975 (Cth) was amended and the definition of marriage was changed to mean ‘…the union of 2 people to the exclusion of all others, voluntarily entered into for life’. The effect being, that couples regardless of sex can now marry in Australia. It is common ground that the amendments have had an impact on a myriad of legislation and they have had a profound effect on reducing the legal obstacles and increased costs that same-sex couples encountered when they were denied the right to marry. But what impact, if any, has the amendments had specifically on the Australian family law arena and how same-sex couples navigate family law?
Recognition of Marriage and Divorce
Prior to the amendment to the definition of marriage, not only were same-sex couples prohibited from being married in Australia, their overseas marriages were not recognised under Australian law. The amendments legally recognise the marriage of same-sex couples in Australia and overseas. Additionally, those same-sex couples who have been previously married overseas (prior to the amendments) could have their marriage immediately recognised.
Prior to the amendments, same-sex couples who were married overseas and decided to separate upon returning to Australia, could not, as their marriage was not recognised under Australian law. Same-sex couples who are married overseas or in Australia can now apply for a divorce.
Under the Family Law Act 1975 (Cth), if a married couple undergo IVF treatment they are both considered legal parents of the child. Whilst if a same-sex de-facto couple undergo IVF treatment, the non-biological party must prove they are in a relationship at the time of the IVF to be deemed a parent. Being able to marry, affords same-sex couples certainty when attempting to conceive a child via IVF, in particular, certainty that they will both be legal parents of the child. Regardless, determining parentage under family law can be tricky, and this is why it is often advisable to seek family law advice from an experienced family lawyer.
When de-facto or married couples separate, they can apply to the Family Court to initiate property proceedings. To be deemed a de-facto couple, parties must be in their relationship for a minimum of two years, unless they have registered their relationship, have had a child or made a substantial contribution to the relationship. De-facto couples must initiate property or child related proceedings in the family court within two years of the relationship ending, with no option for an extension of time. Whilst married couples must initiate property or child related proceedings within a year of finalising their divorce, but also have the option to extend the time to file.
Now that same-sex couples have the choice to marry, they do not have to prove that they have been in a domestic set-up for at least two years. Marriage means couples can instantly initiate proceedings to finalise their matters.
Superannuation Splitting Laws
Superannuation splitting laws allow superannuation to be split when a relationship breaks down. In the not-too-distant past, when same-sex couples separated and initiated property proceedings in Western Australia, they could not apply to split their superannuation (unless the superannuation had vested in them, such as if they were entitled to superannuation under legislation). Consequently, if the majority of the combined total of the parties’ assets and superannuation was one party’s superannuation, the other party would be left with disparitively less than the party who had a large superannuation entitlement. Now that same-sex couples have the option to enter into a marriage, and in the event of a marriage break-down, they are able to split their superannuation entitlements.
This short article provides general information about the subject matter. We recommend seeking professional legal advice from our experienced family law team in regards to your specific circumstances.
If you or someone you know would like more information or needs help or advice, please contact us on (08) 9335 9877 or complete the form below to request an Introductory Consultation.