After 61.6% of voters in a national postal survey voted ‘yes’ to grant same sex couples the right to marry, Australia has introduced new legislation to legalise the union of gay couples. The Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) came into effect on 9 December 2017, officially marking Australia as the 26th country to legalise and support same sex marriage.
The creation of this law has brought about several important changes, namely, altering the definition of marriage from ‘a union between a man and a woman’ to ‘a union between two people.’ Consequently, thousands of same sex couples have lodged Notices for Intended Marriage, with hundreds of couples being married as early as 12:01am on 9 January 2018 - the first official day gay couples were able to marry.
Although the amendments to marriage laws bring about positive change for same sex couples in recognising existing overseas marriages and now allowing them to get married in Australia, it is not without complications. The new law will have ripple effects on several other laws including the Sex Discrimination Act, Family Law Act and Migration Act, amongst others.
For the Family Law Act in particular, recognising same sex marriage as a legal marriage will enable gay couples to have the same right as heterosexual couples to apply for divorce. However, there will be no material difference or distinction by way of property settlement, since s79 and s75(2) already have equivalent clauses for defacto couples, which same sex couples were previously recognised as. The legalising of gay marriage will simply allow a couple to choose whether they wish to take the title of a married couple, which can minimise the obstacle of having to prove a defacto relationship exists. In regard to parenting, the primary consideration is and has always been the best interests of the child, which will not be altered by whether or not same sex couples are legally able to marry.
Looking forward, as with all couples, same sex couples should definitely seek legal advice before getting married. Entering a Binding Financial Agreement is important to be considered to work out what will happen to each person’s assets in the event of separation. Additionally, if a gay couple already have their respective Wills, getting married will invalidate these. It is important that all same sex couples contemplating marriage review their Wills to avoid future complications.
Many developments in the law will need to come to fully accommodate and accept the change but legitimising gay marriage is definitely a step in the right direction for equality.
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The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.