Equal Marriage Equal Divorce: What rights do Gay Couples Have under the Family Law Act – With Marriage and Without?

Some wisecracking contributors to the marriage equality debate came up with the trite and vacuous saying:  “Equal Marriage = Equal Divorce” the implication being that if you give all marriage equality, then you also give them the rights, duties and obligations inherent on divorce.  Or more accurately expressed, on the breakdown of a marriage at law one person can exercise their rights at law for property and maintenance division under the Family Law Act).

As a family law specialist of many years, many people have also commented that we must have greeted the marriage equality debate with glee at the prospect of a burgeoning client base.  They incorrectly assumed that somehow the Family Law Act did not apply to same sex couples.  In fact, both children and property/maintenance issues have long been a part of the legal landscape of the Family Law Act.

Parenting Matters:

Prior to referring their powers to the Commonwealth, each State and Territory had the jurisdictional responsibility of making decisions about with whom ex nuptial children (as they were referred to) would live and what “access” the other parent would have to those children.  Over time and from 1987 onwards the States and Territories started referring their powers in relation to ex nuptial to the Commonwealth to enable the Family Court the ability to make all orders relating to children.

2008 – s60H(1) of the Family Law Act 1975 was amended to recognize both members of a lesbian relationship as the parents of a child born as a result of an assisted conception, if at the time of conception the parties were in a relationship (with each other).

Two Jurisdictions Meant Two Courts and Two Lots of Legal Costs

From 1987 to March 2009, de facto couples or those who were parents to ex nuptial children had to issue in one court in relation to children (the Family Court) and their State or Territory Supreme Court or equivalent in relation to property matters.  This led to much time and many costs being expended and a campaign of law reform got underway to bring all couples – married or not under the one roof for decision making in relation to all issues.

Financial Matters:

From 1 March 2009, parties in a de facto relationship which had broken down were able to apply to the Family Courts to have financial matters determined in the same way as married couples as a result of the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008.


For those de facto same sex couples, the decision to marry each other was not open to them until the House of Representatives passed a Bill clearing the way for this to occur on 7 December 2017.

On 8 December 2017 the Governor General of Australia Peter Cosgrove assented to the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 thus ensuring it became law effective from midnight i.e. 9 December 2017.  Due to the notice period that is required under the Marriage Act of an intention to marry, the first day that same sex couples can legally marry each other in Australia is 9 January 2018.


Already Married

For those couples who could not wait for Australia to catch up to other countries who had legitimised same sex marriage, and who elected to marry in countries such as New Zealand, the United Kingdom, the USA (except American Samoa), Ireland Brazil Canada, Denmark, Iceland, Malta, South Africa, Portugal etc, their marriages became recognised under the law in Australia on the stroke of midnight 9 December 2017.

If the couple entered into a marriage which was legal in that country at the time that the marriage ceremony took place then that marriage is considered the same way any overseas marriage would be under Australian Family Law.

They do not need to register this marriage for it to be recognised in Australia but as with any other married couple, they may be required to produce proof of marriage.  In the instance of one half of a couple dying, the marriage certificate would be required to establish next of kin to enable transaction to ensue i.e. payment of superannuation entitlements of the deceased to the surviving spouse.

Voiding a Will

As with any marriage, a Will that was entered into, not in contemplation of a subsequent marriage needs to be updated.  In short, anyone who entered into an overseas marriage would need to now update their Will as the marriage is now considered valid in Australia and proper provision should be made for a spouse pursuant to a Will and if not the Executor of the Will needs to be aware that the Will could be successfully challenged in the event of their death.

The reason why Wills need updating post marriage is due to the fact that whilst divorce does not invalidate a Will, marriage does.  There are requirements under State and Territory law as to what happens to a person’s deceased estate and if the deceased failed to make provision for a spouse, then the spouse can seek remedies under the relevant State or Territory law.   If there is no Will, then intestacy provisions prevail and State or Territory law applies as to who benefits from the estate.  A marriage certificate from an overseas marriage could now be produced by the surviving spouse to ensure that the intestacy provisions acknowledge the marital marriage.  This does not mean to say that State and Territories laws ignore de facto entitlements.


As overseas marriages are now recognised under the Federal Marriage Act (as recently amended), a couple who separate can now apply for a Divorce under the Family Law Act.  The question is when they should seek to do this and what provisions in relation to post separation pre divorce counselling apply to them.  It is assumed that it is the date of the actual marriage which has been recognised as of 9 December 2017.  Therefore if a couple were married for less than 2 years by the time they apply for a divorce they need to have undergone marriage guidance/separation counselling for the Court to be able to process their divorce application in exactly the same as this would apply to opposite sex married couples.  In short the requirement to ensure that a couple have explored their marriage with assistance prior to applying for a divorce is relevant to gay married couples.

At present: No Same Sex Divorce on Line

Whilst opposite sex couples can apply for a divorce on line, this is not yet available to same sex couples.  Watch this space however as it is assumed that the Family Courts are playing catch up with the Court forms and amending the forms to reflect the change in the law.

The information in this blog does not constitute legal advice and cannot be relied upon by you. If you require advice specific to your situation you must contact Caroline Counsel Family Lawyers for legal advice.  The contents of this blog are relevant as at 14 December 2017.  We recommend you obtain specific advice relevant to you and your family’s situation.

By Caroline Counsel

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