Same-sex divorce in Australia: A brief history and your legal rights today

Marriage equality is a cause for celebration. 

By Shelley O’Connell, Head of Family Law at Roger Fritz LLP, Adelaide.

On 9 December 2017, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 came into law in Australia, having passed the Federal Parliament two days earlier, after decades of lobbying and advocacy by multiple diverse Australian community sectors. 

In the lead up to this historical and much-awaited development for the LGBTIQ+ community, several reform attempts were made at both state and federal levels. Many attempts failed, and some resulted in other (lesser) forms of recognition of same-sex relationships*, covered below.

*For the purposes of simplicity, we refer to “same-sex” marriages and relationships but note that relationships and marriage involving all people are now recognised by the marriage equality legislation including those who identify as transgender, intersex, non-binary or otherwise.

A brief history 

In 2013, the ACT parliament passed the Marriage Equality (Same Sex) Act permitting same-sex marriages from 7 December 2013. However, the Commonwealth immediately launched an attack on the legislation, and the High Court ultimately found the Act invalid due to its inconsistency with the federal Marriage Act 1961. While disappointing at the time, this decision made it clear that real marriage equality reform could only happen at a federal level. 

More years passed with inaction by the federal government, and other same-sex recognition initiatives passed through the legal system. For instance, in South Australia from 1 August 2017, same-sex couples could register their relationship with Birth Deaths and Marriages. This Register arose from the Relationships Register Act 2016 (SA), introduced in the aftermath of the tragedy involving David Bulmer-Rizzi, a British man who died in South Australia after marrying his husband, Marco Bulmer-Rizzi. 

Because Australia did not recognise their UK marriage, the death certificate was stamped “Never Married”. Other states and territories had similar registers to recognise same-sex relationships in varying forms over the years. 

In 2017 the Federal Government made the controversial move to survey the Australian population on marriage equality attitudes. This process did much to cause division in the community and pain to LGBTIQ+ persons and their families and supporters. But this also made it clear that most survey responders (61.6%) favoured marriage equality. This response resulted in Senator Dean Smith’s private members’ bill being passed by the majority and the new law taking effect. 

The new marriage equality legislation also had the effect of immediately allowing same-sex marriages overseas to be legally recognised in Australia, including retrospectively. 

So what does this mean for same-sex divorce proceedings?

Whilst we can explore more around the rights and responsibilities afforded to parties to a marriage, same-sex or otherwise, we now turn specifically to what it means for same-sex marriages when the relationship breaks down. 

For many years now, people who lived in same-sex de facto relationships had access to similar if not the same protections as parties to heterosexual de facto relationships under the various state and territory laws. 

And since 1 March 2009 (or 1 July 2010 in South Australia), all de facto relationship breakdowns, same-sex or heterosexual, have been dealt with under the federal Family Law Act 1975 (Cth), with almost all the same rights as parties to a legal marriage.

Under this federal law, before marriage equality, if a same-sex relationship broke down, a party would only be able to make an application for property settlement or spouse maintenance if the following applied:

• It was a genuine de facto relationship that lasted at least two years; or
• There was a child of the relationship; or
• The relationship was registered under a prescribed law of a State or Territory; or
• Failure to make an order would result in serious injustice due to the significant contributions made by at least one of the parties.

With the ability to marry, parties to same-sex marriage would not have that to satisfy the above requirements to make a claim, as the marriage would now be enough. 

Key considerations for same-sex divorces in Australia

As with all marriage breakdowns, parties to same-sex marriage should be aware that, if the relationship breaks down and the parties separate, there are some key things to consider:

1. Applying for a divorce is not the same thing as finalising a property settlement or seeking orders for parenting arrangements after separation.
2. You can only file a divorce application if you have been separated for at least 12 months (including separation under the same roof). 
3. At any time, you can make an application for property settlement or spousal maintenance, including well before you file for divorce and up to one year after the divorce has taken effect. 
4. You can apply for a divorce order, whether both parties want it or only one does.
5. In Australia, we have a no-fault divorce process which means that the Court does not take into consideration the circumstances surrounding the marriage breakdown, and it is sufficient that one or both of the parties considers that there is no chance of reconciliation.

Same-sex couples now have all the same rights as any other couples to enter into Binding Financial Agreements before marriage as well, sometimes known as a “prenup“.

And, of course, not every same-sex divorce in Australia is acrimonious. Many couples can amicably negotiate and resolve financial matters between themselves after they separate, with or without the assistance of lawyers, and finalise their settlement by entering into Consent Orders. This way, they can ensure they can move on with their lives, safe in the knowledge that their agreement is legally binding.

Whatever your circumstances, from facing a relationship breakdown of any kind to contemplating your legal rights in your current relationship, you should seek the advice of a family lawyer at the earliest opportunity to ensure your rights and legal entitlements are best protected every step of the way.

Contact us via the form below to get advice on same-sex marriage and divorce in Australia.