Aston Legal Group

Family Law Matters

Who gets the dog?

Same-Sex Couples and the Family Law System

Let us rewind to December 2017. We were waving our rainbow coloured flags with great enthusiasm and delight as the Australian Federal Parliament made the decision to pass a law legalising same-sex marriage across Australia. Fast forward to present day, and there is still some confusion about what this law means for the legal rights of same-sex couples. In this article, we attempt to unravel some frequently asked questions and assist you in your navigation of the family law system.

Are There Differences Between Same-Sex and Traditional Marriage?

Before amendments were made in 2017, marriage was defined as ‘the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.’ However, due to popular opinion and the widely held belief that this definition was outdated, it was decided that marriage should be redefined. Presently, marriage is accepted as “the union of 2 people to the exclusion of all others, voluntarily entered into for life.” The effect of this amendment is that parties to a same-sex marriage are now treated under the same marriage principles as opposite-sex couples.  

Are Overseas Same-Sex Marriages Recognised in Australia?

Same-sex marriages solemnised overseas are recognised in Australia, as are same-sex marriages solemnised in Australia by, or in the presence of, a diplomatic or consular officer of another country. An overseas marriage will generally be recognised in Australia if it was a valid marriage in that country and would be recognised as valid under Australian law if the marriage had taken place in Australia. For example, that neither of the parties were already married and both were of marriageable age.

It is also possible for same-sex couples who married overseas to apply for a divorce in Australia (provided they meet the requisite legal criteria). Evidence of the validity of an overseas marriage is generally satisfied by the provision of an original or certified copy of a marriage certificate.

What About Same-Sex De Facto Couples?

The Family Law Act makes no distinction in relation to the respective genders of the two parties in a de facto relationship. When any relationship ends, there may be a dispute about what would constitute an appropriate property settlement. There might also be a need for parenting arrangements to be resolved, or which would benefit from being formalised pursuant to court orders. This is all perfectly doable!

You should note, however, a court will need to be satisfied that your relationship was, in fact, ‘de facto’ and this will give rise to the following considerations:

  1. The length of your relationship. Under Australian law, you must be in a relationship for at least two years to be considered a de facto relationship. This requirement may be excluded if there is a child of the de facto relationship, if your relationship was registered, or if you made significant contributions to the relationship.
  2. The nature and common residence during your relationship.
  3. The degree of financial dependence and financial support between you and your former partner.
  4. A mutual commitment to a shared life.
  5. The public appearance of the relationship. That is, how you presented your relationship to friends and family.

The Bottom Line

The unfortunate reality is that many relationships come to an end, and when they do, it is important to know where you stand. Whether you are in a same-sex or opposite-sex relationship, you are entitled to pursue a property settlement following separation, as well as obtain parenting orders under the Family Law Act 1975 (Cth) should they be necessary.

The Next Step

If you would like advice about your family law matter and wish to obtain an understanding of the options available to you, contact 8391 8411 to book a free 30-minute consultation with us to discuss what steps you should take next. We look forward to speaking with you.

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