The legal impact of same-sex marriage under Australian law

In December 2017, Australia became the 26th country to legalise same-sex marriage. The legalisation of same-sex marriage in Australia followed a highly-publicised and ultimately successful postal survey of the Australian public.

The legislation has impacted the recognition of same-sex relationships in a number of ways.

The most obvious and important impact is that two people of the same sex can now marry and be afforded the legal rights and responsibilities provided to married couples under Australian law. These rights are varied and range from the automatic recognition of a spouse within the State based laws relating to wills and inheritances to the ability to make a post-separation claim for short-term and long-term financial maintenance under the Family Law Act.

Prior to the new laws, the legal recognition of same-sex relationships under Australian law was limited to recognition as de facto relationships in certain circumstances. While the legal rights and responsibilities afforded to de facto couples under Australian law largely mirror those of married couples, the existence of a de facto relationship can sometimes be subject of dispute. This is because a relationship will only be legally recognized as de facto if certain defined criteria are met. These criteria include but are not limited to conditions regarding the length that the couple has lived together, the extent of their financial mixing and the public appearance of their relationship. When a dispute arises about the existence of a de facto relationship, parties often have no option but to have the intimate details of their relationship forensically examined by the Court. In contrast to such disputes, married couples have a marriage certificate as indisputable evidence of the existence of their marriage.

Additionally, the new laws allow for same-sex marriages validly entered into overseas to be recognized under Australian law. Same-sex couples who married overseas are also now legally able to divorce under Australian law.

A possibly unwanted impact of the law is that it is possible to be in a marriage with one spouse while meeting the criteria for a defacto relationship with another spouse. The repercussions for this can be painful.

Berry Family Law provides comprehensive legal advice on all aspects of Family Law, including legal advice relating to same-sex relationships