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It’s Mardi Gras! Here’s 5 things for same-sex couples to consider since the “YES”

Last year was the year of the YES and the celebrations will surely continue over what is to be an epic Mardi Gras weekend! But now that we have marriage equality, there is a whole new demographic who will likely need to engage in the family law process at some point in the future.

Here is a list of 5 things to think about:

  1. Your overseas wedding is now recognised in Australia.

In Australia, you can only have one marriage recognised at any one point in time. This means, you cannot be married to two or more people at the one time, and you cannot be married to the same person twice.

On 9 December 2017 the legislation which allows same-sex marriage came into effect. This meant the following day, many couples who were married overseas (or at an overseas consulate) woke up legally married in Australia.

It is important for those couples to understand that they cannot now legally marry in Australia as they are now already married in the eyes of the law.

  1. Divorce is now possible.

Marriage equality = divorce equality.

Same-sex couples who were married overseas, we previously unable to dissolve their marriage in the eyes of the law and found themselves in the situation where they were separated but not divorced. As at 9 December 2017, all same-sex couples will be treated the same as any other couple for the purpose of divorce applications. Divorce, although the last and simplest step in the separation process, is often an important step to achieve closure and to allow couples to mentally and practically move on with their lives.

Just days after the new law passed, Australia saw a Perth based couple become the first Australia same-sex couple to apply for divorce.

  1. Existing Financial Agreements will still be valid, but maintenance orders will not be.

The new legislation provides some transitional provisions for cases where couples have entered into a binding financial agreement either before, during or after the relationship. Some agreements may remain valid and binding under the provisions of the Family Law Act which relates to Financial Agreements between married couples. This is specifically in cases where the same-sex marriage is now recognised in Australia (such as with overseas marriages).

Regardless, each agreement should be assessed on a case by case basis as to whether they will still have the full effect under the new legislation.

If you receive spousal maintenance from a previous partner, the recognition of your same-sex marriage in Australia, will now cause that maintenance to cease effect.

  1. Time limits for property settlements have changed.

Previously, same-sex couples recognised as de facto, were bound to a 2 year time limit to finalise all property and financial issues, from the date of separation. In comparison, married couples did not activate any time limits until they were divorced. Once divorced, married couples have 12 months to finalise all property and financial matters.

Same-sex marriages which are now recognised in Australia, will no longer be constrained by the 2 year time limited post separation.

  1. Your Will we no longer be valid.

Generally speaking, the act of marriage automatically revokes any Will previously entered into. The only exemption to this rule is where a Will was entered into in “contemplation of marriage”.

Any same-sex couple whose marriage is now legally recognised in Australia, or any couple who have recently been married, should look at having a new Will drafted. This is even the case where the provisions in your Will are the same, I.e. Your property being left to your then de facto, now married partner.

De facto couples who are not planning on getting married, should consider having a power of attorney document drafted. This document gives you the right to make decisions for your partner if they are critically ill or injured, or to make decisions for their estate if your partner dies and has no Will. Married couples automatically have these rights as they are considered next of kin, whereas de facto couples may not.

Feel free to contact the experienced team at Family Law Matters if you have any questions about changes to your rights.


Written by Veronica Phillips