Same sex marriage… and divorce?

Same sex marriage… and divorce?

While we’ve been caught up in the celebrations of sex or gender no longer affecting the right to marry in Australia, what if you were married overseas in a marriage recognised outside of Australia, before 9 December 2017? What if you had previous financial agreements in place before you were married? And what if you want to get divorced?

Australia now recognises existing marriages that were solemnised overseas under the law of a foreign country. This is the same for same sex marriages that were solemnised in Australia by a diplomatic or consular office of a foreign country.

All same sex married couples (including those who married overseas before 9 December 2017) are now married couples for the purposes of family law matters. This may have some implications for same sex couples who were married overseas and had pending family law proceedings on 9 December 2017, who are parties to a financial agreement made before 9 December 2017 or were benefiting from a maintenance order from a previous relationship.

Under the Family Law Act, there is a single ground for divorce being an irretrievable breakdown of marriage. To meet this threshold, parties need to have been separated (or living separately and apart) for at least 12 months prior to making an Application for Divorce and satisfy the Court that there is no reasonable likelihood for reconciliation. Same sex couples will be treated as the same as other married couples, and will be able to divorce under Australian law if they meet the irretrievable breakdown requirement.

If you have previously entered into a financial agreement or have a maintenance order in place from a previous relationship and you are not sure how that might affect you in your new marriage (or breakdown of the marriage) one of our experienced Family Law solicitors would be happy to discuss this with you further.