Divorce agreement. Wife and husband can not make settlement

What Does Same-Sex Marriage Mean for Divorce Proceedings?

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.

Share:

Send an enquiry

Any personal information you provide is collected pursuant to our Privacy Policy.

Categories
Archives
Author

More posts

Proposed changes to building and construction law in NSW

The Building Bill 2022 (the Bill) is the key avenue through which the NSW Government has proposed to reshape the culture of the building and construction industry by eliminating poor performance and improving the quality of building statewide.

Can you dismiss an employee who fails to return to the office?

Slowly but surely, most employers are requiring employees to return to the office for at least a portion of their working week. Some employers continue to struggle with employees resistant to returning to the office or those who have an expectation that they can continue to work from home whenever it suits them.

New powers to combat phoenixing in construction

The rise of phoenixing in the building and construction industry in Australia in recent years has proved a significant challenge to regulators. Mismanagement of time or cashflow can quickly propel businesses into insolvency.

The NSW Building Commission’s extraordinary powers

In late 2023, the NSW Government passed the Building Legislation Amendment Bill 2023 (Amendment Bill). The Amendment Bill established the NSW Building Commission and granted it extraordinary powers to enter construction sites, inspect work and take away information and materials.

© 2024 Coleman Greig Lawyers   |  Liability limited by a scheme approved under Professional Standards Legislation. ABN 73 125 176 230