What Does Same-Sex Marriage Mean for Family Law Proceedings?

Malcolm Gittoes-Caesar, Kirstie Barfoot

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. 

Property Proceedings:

Since amendments to the Family Law Act in 2008, the Family Court has had the power to alter property interests for same-sex couples who fall into the category of a 'de facto relationship' (per s4AA of the Family Law Act, an unmarried couple living together on a genuine domestic basis).  In that respect, same-sex de facto couples have been treated in the same way as heterosexual de facto couples since 2008.

However, commencing property proceedings is slightly more difficult for de-facto couples because they have to meet certain criteria to establish their de-facto relationship (for example, establishing that there was a common residence and financial dependence - see Malcolm Gittoes-Caesar's previous blog).  This is in contrast to married couples, where the existence of a valid marriage is, from the perspective of the court, proof enough that the parties shared joint property interests. 

There is a two-year time limit on de facto couples applying to the court to determine property matters following the parties separating.  A married couple has 12 months following a divorce order being issued to commence proceedings with the court.

The difference in timelines relating to applications to the court for assistance may also impact same-sex couples who historically separated without seeking the court's assistance, but never applied for a formal divorce order from the country they were married in.  The court encounters matters similar to this when separated heterosexual couples have waited a significant period of time before filing for divorce, and in turn apply to the court for a property settlement a number of years following their actual date of separation.

Whilst the court has not yet been forced to decide how the retroactive recognition of same-sex marriage will impact timelines relating to the commencement of property proceedings, ultimately the Family Court has the ability to determine whether a case should be dealt with by a Judge on a case-by-case basis, assessing whether it is just and equitable for the court to intervene.

Divorce Proceedings:

We probably don'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 quite 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.

Parenting Matters:

Under section 60H of the Family Law Act, if a child is conceived via IVF using a sperm donor and the pregnant women's marital partner consents to that procedure, then the martial partner is, at law, a legal parent of that child (even in the absence of a biological connection).  However, if the parties are not married, the non-biological parent would then need to prove that they were in a de-facto relationship at the time of the IVF procedure (as well as consenting to the procedure) to be considered a legal parent of the child.

This meant that, prior to same-sex marriage legislation, same-sex couples who conceived children via IVF did not have the presumption of parentage through marriage that passed to married heterosexual couples (and instead relied on de facto provisions of the Family Law Act).  Marriage eliminates this onus entirely as same-sex couples who are married will no longer have to prove that their relationship existed to be considered the child's parent.

At this stage, the presumption of parentage concerns IVF pregnancies only, and does not pass to children conceived via surrogacy agreements (which are dealt with separately under the legislation of the state that the parties reside in).  This means that male same-sex couples do not have the same presumption of parentage for IVF children as same-sex female couples (as there is currently no legislation that severs the parental rights of the woman who gave birth to the child without further involvement of the court).

However, the Family Law Act provides an entitlement for any interested party (including males in same-sex relationships) to apply for parenting orders relating to a child (see section 65C of the Family Law Act), and the court is able to consider the family dynamics and circumstances of each individual case prior to determining who the child resides with, and which adult figures in the child's life should hold parental responsibility for the child.

If you or your partner require any assistance from a Family Law Accredited Specialists, or you have concerns about how the recent legal amendments may impact your family, please do not hesitate to contact our Family Law team: