Family Law Blog

What Does Same-Sex Marriage Mean for Divorce Proceedings?

Posted by Malcolm Gittoes-Caesar, Kirstie Barfoot on 4 May 2018

Australia is now officially the 26th country to legalise same-sex marriage, with the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) coming into effect on 9 December 2017.  

Overall, the introduction of same-sex marriage will see same-sex couples have greater access to legal protections surrounding both financial and parenting matters. 

Coleman Greig probably doesn't need to tell you that with marriage, can come divorce.  In Australia, almost 1 in 3 marriages end in divorce, with the most common time for a marriage to end being following a period of 12 years.

Considering the fact that same-sex marriage legislation is still very new in Australia, you may be thinking that it will be a while before same-sex couples start filing for divorce.  However, the legislation has also recognised historical same-sex marriages that took place overseas.  Given that there are nations which legalised same-sex marriage as early as 2001 (the Netherlands), there are many same-sex couples in Australia who have already been married for a significant period of time.

In fact, one particular Perth couple who were married in Europe in 2015 have already filed for divorce under the new law.  It is therefore projected that divorce rates may increase sooner than expected in response to the legislative changes.

Given that marriages are recognised retrospectively, one potential flaw in the Australian same-sex marriage legislation is that people who get married under Australian law may be getting married for the second time (if they were previously married overseas, but did not formally divorce as their marriage was not legally valid in Australia).  
This means that there may well be people in either two same-sex marriages, or potentially one same-sex marriage and one heterosexual marriage.

Under section 88D(2) of the Marriage Act, the second marriage will be nullified if a person enters into a second valid marriage.  This has potential ramifications for the parties to a 'second' marriage- who will then be subject to the de-facto provisions of the Family Law Act instead of the marriage provisions.

This blog is part one of three relating to Australia's new same-sex marriage laws, and how they are set to affect proceedings within the Family Court.  Our next two blogs will focus on issues surrounding both parenting and property matters within the context of separation and divorce proceedings.

If you have any questions or queries regarding same-sex marriage or related divorce proceedings, please don't hesitate to speak with one of our Accredited Specialist Family Law lawyers - or simply speak with: