The Marriage Act of 1961 was modified to permit same-sex marriage in 2017, following the Australian marriage law postal poll in December 2017, 61.6% of Australians supported same-sex marriage. The definition of marriage was redefined from being the exclusive, voluntarily entered-in relationship of a man and a woman for life. The Marriage Amendment (Same-Sex Marriage) Bill, which modified the definition of marriage to be the union of two persons, to the exclusion of all others voluntarily entered into for life, was implemented following the 2017 postal poll.
The most notable and significant effect is that two people of the same sex can now get married and enjoy the same legal rights and obligations that married couples are entitled to under Australian law. These rights are many and vary from the automatic recognition of a spouse under State-based legislation governing wills and inheritances to the capacity to file a post-separation claim under the Family Law Act for short- and long-term financial maintenance.
Marriages and de facto unions have different characteristics
The marriage must be performed by an authorised celebrant, such as a minister of religion, a celebrant, or a recognised state or territory officer after the couple has waited a month after filing their Notice of Intended Marriage form. It also implies that your relationship is recognised immediately, and the couple is not required to provide supporting documentation.
The Family Law Act of 1975, on the other hand, provides a more comprehensive definition of a de facto relationship. Two persons are said to be in a de facto relationship by Section 4AA if:
- They are not formally married to one another.
- They are not blood relatives.
- They have a relationship as a couple having a real domestic relationship taking into account all the conditions of their relationship.
Same-sex divorce and property proceedings
Establishing a de facto relationship has always been challenging, and same-sex couples that fall into that category face more challenges in property cases than married couples. De facto couples have two years from the date of separation to start property procedures, but married couples have one year from the date of divorce to start court proceedings. Couples who live together and are financially reliant on one another must show these facts to establish their de facto status. Contrarily, getting married is a lot easier process, and the Family Court will accept a marriage certificate as sufficient evidence of their common interests.
Same-sex divorce and divorce proceedings
What the divorce procedure is for same-sex spouses has raised some questions. The explanation is that same-sex relationships can end in divorce like opposite-sex ones. Either of the partners can apply for divorce jointly, or they can apply on their own. If they file for divorce independently, they must serve the other party with the divorce papers. The requirements for divorce are:
- They either acquired Australian citizenship via ancestry or were born in Australia;
- They were granted Australian citizenship (they must present a Citizenship Certificate as identification);
- They’ve been residing in Australia for the past 12 months, and they intend to stay there;
- They applied after being divorced for at least a year. It’s crucial to remember that they may live together while being apart.
- They’ll need to provide proof that the connection is over.
In Australia, the battle to legalise same-sex marriages has been a protracted one that has lasted for many years. Although Commonwealth law does not recognise these unions as marriages, same-sex marriage legislation was passed by the state’s first. They receive civil union status. Couples who enter a civil union are given many of the same privileges as those who choose to marry, but not all of them. The option for same-sex couples to register their domestic partnership with the appropriate state agency is also available. Fewer organisations are now opposed to same-sex marriage, as public opinion has evolved in its favour over time.