Did you know that the first same sex divorce in Australia was finalised in 2018? This case involved two women in Western Australia who had married overseas. While their separation predated the legalisation of same-sex marriage in Australia, they were unable to formally divorce due to legal limitations on recognising their union.
This landmark case highlighted the need for legal frameworks that reflect the realities of modern relationships. Fast forward to today, Australia offers a clear and streamlined path for same-sex couples seeking divorce. This article explores the legal process of same sex divorce in Australia, examining its similarities and potential nuances compared to heterosexual divorce.
Same Sex Marriage in Australia: Laws and Regulations
Let us first discuss same sex marriage in Australia and its laws and regulations. In a historic moment for equality, Australia redefined marriage in December 2017. Following a national vote in favour of gay marriage equality, the Marriage Act was updated to recognise same-sex unions.
This act defines marriage as “the union of two people to the exclusion of all others, voluntarily entered into for life.” This change ensured that all couples, regardless of gender, could enjoy the legal and social benefits of marriage which even included same sex divorce.
The update didn’t significantly alter existing marriage regulations. Existing marriage celebrants were given the option to become religious marriage celebrants, allowing them to solemnise ceremonies that align with their beliefs.
Impact of Religion on Same Sex Relationships
After March 2018, only ministers of religion from non-recognised denominations could register as religious celebrants. Importantly, the law protects the right of both ministers of religion and celebrants to act according to their personal beliefs about marriage.
Marriage forms and ceremonies were also adjusted to reflect the new reality of marriage equality. The wording of vows and the celebrant’s marriage statement were modified to be inclusive of all couples. Additionally, overseas same-sex marriages that meet certain criteria are now recognised in Australia.
This means couples with a valid overseas marriage can’t remarry in Australia but may opt for a different type of ceremony, such as a vow renewal or recommitment ceremony. The most significant impact of this legal change lies in the realm of family law. Since December 2017, same sex married couples have the same rights and responsibilities as heterosexual couples under Australian law.
This applies to both existing marriages and those entered into after the reform, as well as to overseas marriages recognised by Australia. This legal recognition extends to issues like divorce, property division, and spousal support.
Check out our factsheet for more information: https://jbsolicitors.com.au/factsheet/
Same Sex Divorce vs Heterosexual Divorce
With the legalisation of same sex marriage, how has this impacted same sex couples who decide to end their marriages? As mentioned, same-sex couples used to rely on de facto relationships for legal protection. Now, similar to de facto heterosexual couples, they could seek property settlements or financial support (spousal maintenance) if their relationship ended, provided they met certain criteria:
- A genuine de facto relationship lasting at least 2 years.
- A child born from the relationship.
- A registered relationship in a specific state or territory.
Additional factors might be considered, such as potential injustice if no order is made or significant contributions are made by one partner. With the legalisation of same-sex marriage, same-sex couples now have access to divorce, just like heterosexual couples.
Property Settlement
The process of property settlement is generally the same regardless of sexual orientation. Here’s a breakdown. The ideal scenario is to reach an agreement with your ex-partner outside of court through negotiation or mediation. This can be faster and less expensive.
A neutral third-party during mediation can facilitate discussions and guide you towards an amicable settlement. But what if negotiation fails during same sex divorce? The ex-couple may then apply with the Federal Circuit Court and Family Court of Australia. The court will consider various factors to determine a just division of assets and debts such as:
- Financial contributions (salary, inheritances) by each partner during the same sex relationship.
- Non-financial contributions (homemaking, childcare) by each partner.
- The future needs of each person (age, health, earning capacity).
- The value of all assets and debts (property, cars, savings).
- Any pre-existing ownership of assets before the relationship.
Spousal Maintenance
Just like with property settlement, spousal maintenance is also possible during the same sex divorce process. Spousal maintenance isn’t automatic. However, you can apply if you’re experiencing financial hardship after separation. You may still apply if your ex-partner has the financial capacity to support you. Here is the process:
- Negotiation: Similar to property settlements, reaching an agreement with your ex-partner outside of court is preferred. You can discuss the amount and duration of payments directly or through mediation.
- Court Application: If an agreement isn’t possible, you can file an application with the Federal Circuit Court or Family Court of Australia. The court will assess your situation based on several factors.
Factors Considered by the Court:
- Financial Need: The court will evaluate your current financial situation and ability to support yourself.
- Capacity to Pay: Your ex-partner’s income and financial resources will be considered to determine if they can afford to contribute.
- Length of Relationship: The duration of your marriage or de facto relationship can influence the award. Longer relationships may justify longer maintenance periods.
- Standard of Living: The court aims to maintain a similar standard of living you enjoyed during the relationship, considering both parties’ needs.
- Age and Health: Your age, health, and ability to re-enter the workforce are taken into account.
- Contributions to the Relationship: The court may consider each partner’s contributions (financial and non-financial) during the relationship.
What About Children?
Same-sex couples can adopt children together through a joint petition. LGBTIQA+ individuals can also adopt as single parents. Each state has specific criteria to ensure the child’s well-being. If you’re not a child’s legal parent and adoption isn’t an option, you may still have rights. You can apply for a parenting order through the Federal Circuit and Family Court.
This order outlines living arrangements, visitation time, responsibilities, and communication – all focused on the child’s best interests.
How Can JB Solicitors Help With Same Sex Divorce?
Same-sex separation or divorce follows the same legal process as heterosexual divorce in Australia. However, this also spells family law issues that may stem out from misunderstandings a family lawyer can still be very helpful for same-sex couples. Family lawyers from JB Solicitors can:
- Understand complexities specific to same-sex couples, like legal parentage through surrogacy.
- Offer tailored guidance based on their experience with same sex divorce.
- Protect your rights regarding property division and spousal maintenance.
- Negotiate settlements or guide you through mediation to avoid court.
- Represent you in court if necessary.
Contact us today for all your family law needs.