On 7 December 2017, the Commonwealth Parliament enacted legislation that amended the definition of marriage in the Marriage Act 1961 (Cth) to ‘…the union of 2 people to the exclusion of all others, voluntarily entered into for life’ (formerly, the definition was in terms of the union of ‘a man and a woman’). The effect of these amendments is that couples may now, regardless of sex, marry in Australia. It is common ground that the amendments have had an impact on a myriad of legislation and on reducing the legal obstacles (and increased costs) that same-sex couples encountered when they were unable to marry. But what impact, if any, have the amendments had on the Australian family law specifically, and how same-sex couples navigate this important and complicated arena?
Recognition of Marriage and Divorce
Prior to the amendment to the definition of marriage, not only were same-sex couples unable to marry 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, the Australian law now recognises the marriages of same-sex couples who previously married overseas (prior to the amendments). The flow-on effect of overseas marriages of same-sex couples now being recognised under Australian law is that such couples may now apply for a divorce in Australia (which was not previously the case).
Under the Family Law Act 1975 (Cth), if a married woman undergoes IVF treatment she and her spouse are ordinarily considered legal parents of the child, provided they both consented to the treatment. Under the Artificial Conception Act 1985 (WA), which in Western Australia covers parentage of children born by IVF to women who are not married, if a woman in a de facto relationship (with a man or woman) undergoes IVF treatment, the woman’s partner is likewise considered the parent of the child (again, if the partner consented to the treatment). Being able to marry potentially renders the issue of parentage of children born through IVF more straightforward for same-sex lesbian couples in that it will usually be easier to establish the existence of a marriage than of a de facto relationship. The issue of parentage for same-sex male couples remains complicated (with adoption or applying for parenting orders possible avenues) and it is advisable to seek family law advice from an experienced family lawyer.
When married couples separate, they can apply to the Family Court of Western Australia to initiate property proceedings regardless of the length of their relationship. Conversely, for a de-facto couple to have a Court-ordered property settlement, the parties must be in a relationship for a minimum of two years, unless they have a child together under the age of 18 years or the applicant made a substantial financial or non-financial contribution to the relationship (and failure to make orders would result in a serious injustice). Establishing the existence of a de facto relationship is complicated and requires an assessment of a number of factors, including whether there exists a sexual relationship and the degree of financial dependence or interdependence between the couple.
While married couples must initiate property proceedings within a year of finalising their divorce, de-facto couples must initiate such proceedings in the family court within two years of the relationship ending. In each case, the Court has a discretion to allow a married or de facto partner to apply out of time.
If same-sex couples marry, as they are now entitled to, it is not a requirement that they have been living in a domestic arrangement for at least two years in order to be entitled to property settlement Orders. If they marry, such entitlement in effect arises immediately, avoiding the potential cost and difficulty of having to establish the existence of a de facto relationship for the requisite period of time, should one party dispute the existence of the relationship.
Superannuation Splitting Laws
Superannuation splitting laws allow superannuation to be divided between a couple when a relationship breaks down. In Western Australia, de facto couples (same sex or heterosexual) are not able to split their superannuation. Consequently, if the majority of the combined total of the parties’ assets and superannuation is one party’s superannuation, the other party may well be left with comparatively less than the party who has 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 regard to your specific circumstances.
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