Same-Sex Marriage and Divorce in Australia

Greg Martinovich
Barrister and Solicitor

Posted on 03/12/2019

60-Second Summary

After the majority of Australians voted in favour of changing marriage laws to allow for same-sex marriage, the corresponding legislation was amended in December 2017. As a result, same-sex couples are able to get lawfully married.

As the number of same-sex marriages steadily increases, this unavoidably gives rise to a relatively new area of family law: same-sex divorce.

 

Same-Sex Marriage Laws

Paragraph 51(xxi) of the Constitution of Australia grants the Commonwealth Parliament the power to make laws with respect to marriage, with Parliament exercising that power by way of the Marriage Act 1961 (“Marriage Act”). 

Until recently, the Marriage Act defined marriage as “the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.” However, having recognised the importance of marriage equality and ending discrimination, Australians in November 2017 spoke overwhelmingly in favour of changing the law. 

Specifically, on 15 November 2017, the Australian Bureau of Statistics announced the results of the Australian Marriage Law Postal Survey, reporting that 61.6% of participants overall (and 63.7% in Western Australia) favoured changing the law to allow same-sex couples to marry. 

Accordingly, on 9 December 2017 the Marriage Act was amended (in part) to define the term “marriage” as “the union of two people to the exclusion of all others, voluntarily entered into for life”, thereby ensuring lesbian, gay, bisexual, transgender and intersex couples have the freedom to marry regardless of their gender or sexual orientation. 

 

Religious Exceptions

Nevertheless, due to further, contemporaneous additions to the Marriage Act, the freedom to marry remains qualified.

Ostensibly made to preserve the right to conscientious objection on religious grounds (but criticised as effectively ‘extending’ discrimination) the additional provisions provide that ministers of religion and religious celebrants may refuse to solemnise a marriage if their personal religious beliefs do not “allow” them to do so. 

Furthermore, bodies established for religious purposes may refuse to make facilities available or provide goods or services, if the refusal:

  1. Conforms to the doctrines, tenets or beliefs of the religion of the body; or
  2. Is necessary to avoid injury to the religious susceptibilities of adherents to that religion.

However, the right to refuse making facilities available, or to provide goods or services, does not extend to individuals more broadly.

Pursuant to subsisting protections afforded by the Sex Discrimination Act 1984 (Cth), and as noted in the Explanatory Memorandum to the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 (as and by way of illustration):

“…a taxi driver, florist, baker or photographer who does not work for a body established for religious purposes cannot lawfully refuse to drive a person to a wedding reception, provide flowers, prepare a wedding cake or take photographs at a wedding ceremony on the basis of their religious or other beliefs about marriage.”

 

Same-Sex Divorce Laws

Whilst marriage is defined as a union ‘voluntarily entered into for life’, the reality is that the average duration of marriage until separation in Australia is approximately 8 years. In the unfortunate event of marital breakdown, the Family Court of Western Australia enjoys exclusive jurisdiction in Western Australia to grant divorce orders. 

 

Applications for Divorce between same-sex spouses

Given the recency of changes to the Marriage Act, amendments to the forms used to apply for divorce between same-sex spouses are still pending. In the interim, modification of forms describing the parties as “husband”, “wife”, “spouse” or “other” are approved for use in the Court and must be filed in hard copy.

Same-sex spouses currently apply for divorce (either solely or jointly) by filing an amended Form 3 Application for Divorce in the Registry of the Family Court of Western Australia, together with a copy of their Marriage Certificate, and by paying the requisite filing fee. 

 

Legal criteria for divorce

Parties to same-sex marriages solemnised either in Australia or overseas are now able to apply for a divorce in the Family Court of Western Australia provided they meet the following legal criteria, which are the same as the criteria for other married couples:

  1. The marriage has broken down irretrievably;
  2. The parties separated and have lived separately and apart for a continuous period of at least 12 months immediately prior to filing the application for divorce (and the marriage has been in existence for at least 2 years – if not, you will need to demonstrate that you have tried to engage the other party in marriage counselling); and
  3. Either spouse:       
    1. is an Australian citizen;
    2. is domiciled in Australia (and regards Australia as their home and intends to live indefinitely in Australia); or
    3. is ordinarily resident in Australia and has been for 1 year immediately preceding filing for divorce. 

 

Separation for 12 months

The requirement that parties have lived separately and apart for a continuous period of 12 months immediately before filing an application for divorce may be satisfied irrespective of whether they continued living under the same roof, provided there is the requisite ‘breakdown’ of the matrimonial relationship.

Factors which the Court considers relevant for a particular couple will vary, but may include:

  • Dwelling under the same roof;
  • Sexual intercourse; 
  • Mutual society and protection;
  • Recognition of the existence of the marriage in public and in private; and
  • The nature and support of any children of the marriage.  

Furthermore, the parties may have attempted reconciliation on one occasion during the requisite 12 month period of separation if, within a 3 month period after the resumption of cohabitation, they again separated on a final basis, noting that the period of resumed cohabitation is not deemed part of the cumulative period of separation.

For example, where the parties separated for 6 months and thereafter resume cohabitation for a period of two months before again separating, they must remain separated for a further 6 months prior to filing an application for divorce.   

If the parties lived separately and apart under the same roof, evidence of matrimonial breakdown must be corroborated by way of a third-party affidavit. 

 

Are overseas same-sex marriages recognised in Australia?

Both existing and future 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 it had taken place in Australia (for example, if neither of the parties were already married and both were of marriageable age). 

It should be noted that marriage celebrants authorised in Australia can only perform legal marriages within Australia, and there are presently no diplomatic or consular officers appointed to solemnise marriages overseas under Australian law. 

Same-sex couples who married overseas may seek Orders for divorce in Australia (provided they meet the legal criteria) and must invoke the matrimonial provisions of the Family Law Act 1975 with respect to property settlement and spousal maintenance (rather than Part VIIIAB, or the Family Court Act 1997 in Western Australia, relevant to de facto couples). 

Evidence of the validity of an overseas marriage is generally satisfied by an original or certified copy of a certificate, entry or record of marriage issued by a competent authority of the relevant country.

 

Same-Sex Civil Unions & Commitment Ceremonies

The term ‘civil union’ largely embraces all schemes formally recognising a couple’s personal relationship other than marriage. Examples include:

  • Civil partnerships; 
  • Personal partnerships; and
  • Significant relationships.

A commitment ceremony, whilst incorporating many of the rituals associated with marriage, and even when conducted by an authorised celebrant, is not considered a legal marriage in Australia.   

Accordingly, neither civil unions or commitment ceremonies confer the same rights and obligations on parties to them as do marriages under Australian law, and the distinction may be significant depending upon a couple’s particular circumstances. 

 

Same-Sex Divorce Hearing

Upon filing an application for divorce, the matter is listed for hearing either in chambers or in open court. No attendance by the parties is required if the application is heard in chambers. 

The hearing will be listed in open court if:

  1. The parties lived separately and apart under the same roof;
  2. The application is not filed jointly and there are children of the marriage under 18 years; or
  3. A party elects to attend the hearing.

Upon the divorce being granted, the order becomes final one month from the day after the hearing. Beware – you cannot remarry immediately after the divorce has been granted (and prior to the Order becoming final).

 

Get Expert Advice

We at DS Family Law take pride in offering comprehensive and cost-effective legal advice and representation covering all areas of family law, including same-sex divorce, property settlement and child welfare matters.

To find out how we can assist you, contact one of our offices centrally located in Perth, Mandurah and Midland for an appointment. 

 

Let’s meet, and figure it out

For practical advice about what you should do next, please call to arrange a no-obligation initial consultation.