Menu
Separation can be difficult.
We help you through it.
Get legal advice today We help you through it.
9 December 2017 is a historic date for many couples in Australia – it’s the day same-sex marriage was finally recognised by Federal law following a national postal vote.
The Marriage Act 1961, which governs marriage in Australia, was updated, redefining marriage as 'the union of 2 people to the exclusion of all others, voluntarily entered into for life'. This means that the right to marry under Australian law is not determined by sex or gender.
So, what does this mean for same-sex relationships?
Essentially, from that date, same-sex married couples are treated the same as other married couples in Australia – however, the date of the marriage or divorce is critical.
The status of same-sex couples who married in a foreign country after 9 December 2017 is recognised in Australia as long as the marriage was valid under that country’s laws.
Married misery can strike any couple! In Australia, the only ground for divorce is that the marriage has broken down irretrievably and there’s no reasonable expectation that the partners will reunite.
For same-sex couples, the laws pertaining to divorce are the same as for other married couples.
If you were married outside Australia (and that marriage is recognised in Australia), you’ll have to provide a copy of your marriage certificate.
When it comes to wills, there are some complexities due to the recognition of same-sex marriage in Australia in 2017. As always, timing is everything! The change in the Marriage Act 1961 meant that there were impacts on other laws in NSW, including the Succession Act 2006, which provides the legal framework for wills.
Under the Succession Act, marriage or divorce results in revoking parts of a will, including gifts to a former spouse. However, if you married overseas or were divorced following an overseas marriage before 9 December 2017, and you finalised your will after either event, this revocation will not occur. In other words, your will is likely to remain in place despite the change in your marriage status.
(So if you’ve had a falling out with someone you married overseas before 9 December 20187, consider changing your will!)
However, the situation changes if your marriage status changes after 9 December 2017 and you finalise your will before the change.
Complicated much? This summary only lightly touches on the complexities. So… the bottom line is to work with us to check out your situation and to make sure your wishes are carried out in the way you want. At CM Law, we have the expertise and knowledge to guide and advise you.
With the change in the law, same-sex couples and their families could be entitled to receive benefits such as war widow or widower’s scheme, access to the child support scheme, tax concessions, and exemption of the family home from the assets test when one partner enters nursing home care and the other partner continues to reside there.
