The Fine Print of Marriage Equality: Reversing the "I do"
They say you can trust a lawyer to find the worst in every good situation – and for family lawyers, the passing of much-awaited marriage equality laws in Australia comes as no exception. On 9 December 2017, the Marriage Act 1961 was amended to redefine marriage as a “union of 2 people to the exclusion of all others, voluntarily entered into for life”. Sexual orientation and gender are no longer relevant considerations in determining the right of two adults to choose to marry.
The amendments to the Marriage Act go beyond simply changing the definition of marriage. Part VA of the Marriage Act now validates under Australian law same sex marriages which were solemnised overseas, where the law of the foreign country recognises the marriage as valid. Same-sex marriages which were solemnised in Australia before 9 December 2017, by a diplomatic or consular officer under the law of a foreign country, are now also recognised.
Undoubtedly, this will come as good news to the Australians in same sex relationships who exchanged vows overseas as it was unlawful for them to tie the knot in their home country. The flip-side, however, is that many separated gay and lesbian Australians will now find themselves now married in Australia. Prior to the amendments, some same sex couples who had married overseas and subsequently separated were unable to obtain a divorce. They did not meet the jurisdictional requirements of the foreign country where their marriage was solemnised and their marital status was not recognised in Australia. On 9 December 2017, they became reluctant newlyweds under Australian law – suddenly recognised as married to a spouse they may have separated from years ago.
As campaigners of marriage equality in Australia would well know, the status of marriage has significant legal benefits – and consequences – for your legal rights and entitlements, and those of your loved ones. Under the Family Law Act (1975) de-facto couples have only 2 years from the date of separation to make an application for property settlement or maintenance. For those who were married, this application can be made at any time within 12 months of your divorce becoming final.
Therefore, if you have separated from your spouse but are still recognised as legally married, and you have not had a formal property settlement, your spouse may have a right to make a claim for property settlement or maintenance against you at any time, and vice versa. Additionally, the Succession Act 2006 (NSW) provides that if you do not have a Will and you do not have children, your spouse will be entitled to the whole of your estate.
If you have separated and were in a same-sex relationship, Pigdon Norgate can assist you in applying for a divorce under Australian law and provide you with further advice on your options with respect to spouse maintenance and property settlement.