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Same-Sex Marriage and Divorce in Australia

By March 11, 2020 No Comments

On 9 December 2017, Australia became the 26th country in the world to legalise same-sex marriage after 61.6% of Australians supported the change in a voluntary postal survey. As a result of these changes, it is now possible for lesbian, gay, transgender and intersexual copies to lawfully marry and divorce in Australia.

What is “marriage” in Australia?

Same-sex marriage was legalised through the passing of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) which amended the Marriage Act 1961 (Cth) to change the definition of marriage as being between “a man and a woman” to between “2 people”.

As a result of the change, the relevant section of the Marriage Act 1961 (Cth) now reads as follows:

marriage means the union of 2 people to the exclusion of all others, voluntarily entered into for life.

This means that two persons in Australia now have the freedom to be married despite their gender or sexual orientation. They will also be afforded the same rights as heterosexual married couplies in Australia.

Another important change effected by this Amending Act was to recognise certain marriages (such as gay marriages) that occurred overseas but were not recognised as valid in Australia because marriage was only considered to be “between a man and a woman”. Generally speaking, an overseas marriage will be recognised in Australia if the marriage was valid according the laws of that foreign country, and it would have been recognised as valid under Australian law given the amendments to the Marriage Act 1961 (Cth) if it had taken place in Australia.

Can same-sex couples get divorced?

In Western Australia, the Family Court has the exclusive jurisdiction to grant divorce orders. The process involves filing of a Form 3 Application for Divorce and paying the associated filing fee on the basis that the marriage has broken down irretrievably. A divorce hearing is then scheduled. At the hearing, the Court will decide whether a divorce order should be granted to the parties. If so, the order will come into effect one month and one day after the hearing.

Given that the definition of marriage has now expanded to recognise same-sex couples, same sex couples can now get divorced in the same way as heterosexual couples. The first same-sex couple to divorce under Australia’s amended marriage laws was a lesbian couple from Perth who were married in the Netherlands in 2015.

To grant a divorce order, the Court must be satisfied of this if the parties have been separated and lived separately for a continuous period for at least 12 months. According to section 48 of the Family Law Act 1975 (Cth), a divorce will not be granted if there is any reasonable likelihood of cohabitation being resumed.

Unfortunately, same-sex divorce applications cannot be made online at this stage via the Commonwealth Courts Portal. Instead, same-sex couples wishing to divorce must download the Divorce Application form from the Family Court of WA website and file it in person.

Emma De Giorgio – Joss Legal