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Late last year,
the people of Australia and then members of parliament voted and the Marriage Amendment (Definition and Religious Freedoms) Act 2017 was passed to legalise same sex marriage. It’s been a cause for much celebration for couples that, up until then, couldn’t get married. The first couples have already said their ‘I dos’ and celebrations are taking place across the country. With this momentous step comes a change to the rights of same sex couples. If you are thinking about moving into the next phase of your relationship, do you know what your rights are now? What, if anything, does this change for you?
Well, the first thing the act changes (obviously),
is that it is now legal for same sex couples to get married. Instead of defining marriage as the union of a man and a woman, the official wording is the union of two people. To get married you need to be 18 years of age and not married to anybody else. You will need an authorised celebrant to officiate and you will have to fill out a Notice of Intended Marriage form at least one month prior to the wedding ceremony.
One of the rights that same sex couples are entitled now may not be as positive as some others (depending on your situation). As well as the right to marry, same sex couples can now also get divorced. While at first glance this may seem odd, as the right to marry has just been instated, there are same sex couples wanting to divorce. Any same sex marriage that was officiated overseas was, until now, not recognised in Australia. This meant that couples were unable to divorce. With the change in the definition to marriage in Australia, this is no longer the case. The marriage is now recognised and can therefore can be ended. While not the happiest of topics, it does mean that couples that have been separated can now officially end their union. With overseas marriages now being recognised in Australia, a person would have to be divorced before they were able to marry anybody else. People seeking a divorce will need to lodge a divorce application with the Federal Circuit Court.
Once you are married, your rights as a spouse are different than they were before the marriage.
While couples in a De Facto relationship before may think their rights won’t change with marriage, there are some differences. The biggest difference is that in a De Facto relationship there is a burden to provide proof of the relationship. In circumstances where a partner needs medical care or is ill and unable to make decisions for themselves, a De Facto partner would have to go through a lengthy process to prove they are in a relationship with their partner. There is no burden of proof for married couples. By presenting a copy of your marriage certificate you are immediately given access to your spouse and included in decision making if they are unable.
If a same sex couple has a child, using reproductive technologies such as IVF there are differences between the right of the couple if they are De Facto compared with if they were married. A married couple are both considered the child’s parents automatically, while a De Facto couple must again show that the relationship is proven to exist. This would be of particular concern were the legal parent die unexpectedly and the custody of the couple’s child is called into question.
The rights of a person in the event of a spouse’s death change with marriage too. A De Facto partner would have to prove their relationship to even be included in the planning of a funeral. Married couples can be involved in funeral arrangements, will be listed as the spouse on the death certificate and will have access to the superannuation of their spouse. In most cases if a will hasn’t been amended since the marriage, the spouse is automatically considered a beneficiary. A De Facto partner that wasn’t listed as a beneficiary would have to contest the will and once again provide significant proof of their relationship with the deceased. Regardless of whether you are married or De Facto, the best thing you can do is consult with your solicitor to maintain your will and have your intentions and beneficiaries clearly stated.
While some of the changes may seem minor, it’s important to be informed. If you are a couple looking at marriage and want to be sure that you and your spouse are in the best position legally for the future, or if you are looking for help with a divorce, the team at CM Lawyers have the right people with the experience necessary to help. Get in touch with us through our Contact Us page or call on 02 9568 6266.