Same Sex Marriage and Divorce – Where are we now?

23/07/2019

On 9 December 2017 the Federal Parliament passed legislation to amend the Marriage Act of 1961.  Prior to that date it was not possible for persons of the same sex to marry in Australia.  People of the same sex who were in a relationship were regarded as de facto partners and not as married spouses.

This situation meant that there was a difference in the manner in which Family Law property disputes were dealt with.  If you were married, Part VIII of the Family Law Act applied.  If you were a de facto same sex couple, then Part VIIIAB of the Act applied (from 2009 same sex de facto couples were entitled to have their family law matter determined in accordance with the provisions of the Family Law Act 1975 but not as married spouses). 

The Federal Parliament amended the Marriage Act of 1961 to provide that two people can marry regardless of their sex.

Since the amendments in December 2017 the same provisions apply to married couples whether same ex or heterosexual couples.

How do you get married?

The following steps are required to marry:

  1. Lodge a Notice of Intention to Marriage with the Registry of Births Deaths & Marriages. 
  2. There is a period of one month wait.  Parties can marry after one month of lodging a the Notice of Intention to Marriage.
  3. Same sex couples can apply to get married by contacting their chosen celebrant or marry in the Registry of Births Deaths and Marriages.

What happens if you don’t want to get married but you want to have your relationship recognised?

The Registry of Births, Deaths and Marriages in New South Wales maintains a register of de facto relationships.  It is possible for two people of the same sex to register their de facto relationship.

How do you register your de facto relationship?

Complete the Application for Relationships Certificate and provide:

  1. The particulars sought by the Certificate.
  2. Identification proof required by the Registrar which include Birth Certificate, Citizenship Certificate, Driver’s Licence.

How do you get divorced?

There is one ground for divorce in Australia and this applies to same sex and heterosexual couples.  There must be an irretrievable breakdown of the marriage.  The Court will find that there has been an irretrievable breakdown of the marriage if the parties to the marriage have been separated for a period of 12 months.  In the event that the marriage is not more than 2 years, the Court will require a Counselling Certificate. 

The Application for Divorce will be filed in the Federal Circuit Court of Australia and provided the ground of irretrievable breakdown of marriage is established the Court will grant the divorce.

How do you end your de facto relationship?

A de facto relationship can be ended by advising your de facto partner that you no longer regard yourself as being in a de facto relationship.

How and when do you get a property settlement?

Parties to marriages or de facto relationships can apply to either the Federal Circuit Court of Australia or the Family Court of Australia for property division following the breakdown of their marriage or de facto relationship.  Time limits apply. 

Proceedings for property division between married couples must be commenced within 12 months of the date of the divorce.

There are some circumstances in which the Court may extend the time in which a party can make an application for property division.

Proceedings for property division between de facto couples must be commenced within 2 years of the date of separation.

There are exceptions to these limits.  The Court may grant leave to a person to commence proceedings out of time in circumstances where the Court grants leave to commence or proceed with an Application already commenced.

The Court will not grant leave unless:

  1. That hardship would be caused to the party to the marriage or a child if leave were not granted; or
  2. In the case of proceedings in relation to the maintenance of a party to the marriage that at the end of the period within in the proceedings could have been instituted without the leave of the Court, the circumstances of the applicant were such that the applicant would have been unable to support himself or herself without an income tested pension, benefit or allowance.

At Watson & Watson our experienced Family Law Solicitors can assist you with all aspects of family law proceedings whether you are in a same sex/heterosexual marriage or de facto relationship.  Dissolution of a marriage/de facto relationship can be a stressful time and we recommend you seek prompt advice by contacting Richard Watson Senior Family Law Solicitor or Shereen Da Gloria his Personal Assistant to discuss your concerns and seek timely advice.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.

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