Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.
Marriage equality in Australia was a huge cause for celebration but there is another big change that comes with it: gay divorce.
Sometimes marriages end, and this is no different for same-sex couples.
However, because marriage equality was not recognised in Australia until December last year, same-sex couples seeking a divorce were unable to end their marriage under Australian family law, and any overseas divorces were not recognised.
Since achieving marriage equality, Australian same-sex couples can marry and divorce as they wish.
Marriage Equality In Australia
Same-sex marriage is recognised in 26 countries around the world.
The right to marry someone regardless of sex or gender was a long time coming in Australia.
In September last year, the government began sending out survey forms to all Australians on the electoral roll for a postal survey about an amendment to the Marriage Act 1961 that would allow same-sex couples to marry.
This came after long discussions about a possible plebiscite, which would have been a compulsory national vote on the issue of same-sex marriage to gauge the level of public support.
The postal survey, organised by the Australian Bureau of Statistics, was also a means for the government to see how much community support there was for marriage equality, but this vote was not compulsory.
During September and October, 12.7 million eligible Australians returned their postal survey forms.
The results were released on 15 November 2017: 61.6% of respondents voted yes.
Marriage Amendment (Definition and Religious Freedoms) Act 2017
Following the results of the survey, a bill to change the definition of marriage and legalise marriage between same-sex couples was passed in Parliament.
As of 9 December 2017, marriage equality is legal in Australia.
The legislation, the Marriage Amendment (Definition and Religious Freedoms) Act 2017, amends the Marriage Act 1961.
It redefines marriage as:
“The union of two people to the exclusion of all others, voluntarily entered into for life.”
Authorised celebrants – civil celebrants and ministers of religion – are now able to marry same-sex couples.
They must state the new legal definition of marriage as part of the ceremony.
Gay Marriage And Gay Divorce Overseas
Along with couples now being able to get married in Australia, this legislation also recognises same-sex marriages celebrated in other countries, no matter whether they took place before or after 9 December 2017.
If the marriage is valid under the other country’s law, it is valid under Australian law.
Couples who married in a foreign country cannot marry again in Australia unless there is a concern that the foreign marriage may not be valid.
If they wish, same-sex couples may hold a different type of ceremony, such as a confirmation of vows.
Because of the recognition of foreign same-sex marriages, same-sex couples who married overseas now have equal access to the Australian divorce system.
The one ground for divorce in Australia is the irretrievable breakdown of the relationship.
As with opposite-sex couples seeking a divorce, the court must be satisfied that there is no reasonable likelihood that the couple will reconcile and that they have lived separately and apart for at least 12 months before filing the divorce application.
Same-sex couples who divorced overseas now have their divorces recognised in Australia, just overseas marriages between opposite-sex are recognised by Australian law.
Gay Divorce – What Happens?
Is there anything that makes a divorce between two people of the same sex different from a divorce between people of the opposite sex?
No – gay divorce happens in the same way as any other divorce.
The only difference at the moment is that same-sex couples cannot apply for a divorce online. However, this will change in the future.
Same-sex married couples are required to contact the Family Court’s National Enquiry Centre for further information on applying for a divorce.
Otherwise, the process is the same.
A couple can either make the divorce application together, called a joint application, or one party can make the application by themselves, called a sole application.
The applicant making a sole application must then serve the divorce to the other party.
One or both of the parties must be eligible to apply for divorce in Australia by proving that they fulfil one of the following criteria:
- They were born in Australia or are an Australian citizen by descent (born outside of Australia but at least one parent was an Australian citizen and birth is registered in Australia)
- They are an Australian citizen by grant of Australian citizenship (with citizenship certificate as proof)
- They have been living in Australia for at least the past 12 months and intend to continue living in Australia
As with other married couples seeking a divorce, a same-sex couple must have been separated for at least 12 months before filing the divorce application.
It is possible to be separated by still living under the same roof.
Couples who married in another country will need to provide a translation of their marriage certificate if it is not in English.
The End Of Legal Limbo
In August last year, before the Marriage Amendment (Definition and Religious Freedoms) Act 2017 was passed, the United Nations found that Australia was in breach of its human rights obligations by not allowing same-sex divorce.
Not being able to access the Australian divorce system had left several same-sex couples married in other countries with difficulties when they wanted to separate and divorce.
Restrictions due to citizenship and residency used to affect Australian same-sex couples when overseas same-sex marriages were not recognised.
To divorce in Australia, a couple needs a valid marriage certificate. To divorce in a foreign country, one of the parties to the couple must usually be living in the country for at least one year before filing for divorce, if they are not otherwise a citizen.
This is what happened to a woman from Queensland who had married her wife in Canada. She took her case to the United Nations in 2012.
She was, at the time, unable to apply for divorce in Australia, as well as unable to apply for divorce in Canada as she was not a resident there.
The United Nations Human Rights Committee ruled that not allowing her to file for a divorce constituted discrimination on the basis of sexual orientation.
Australia was one of the countries involved in drafting the United Nations Universal Declaration of Human Rights, a ground-breaking document proclaimed in 1948.
Article 7 of the Universal Declaration of Human Rights states that “All are equal before the law and are entitled without any discrimination to equal protection of the law.”
Article 16 states that men and women “are entitled to equal rights as to marriage, during marriage and at its dissolution.”
The UN’s decision came within months of the Australian government finally passing legislation to legalise marriage between same-sex couples, therefore affording them equal rights to divorce as well.
The First Australian Gay Divorce
Legalising marriage equality was a relief for many same-sex couples who had waited months, years or a lifetime to get married.
It was also a relief for already married same-sex couples who had been previously unable to divorce.
Being able to divorce meant that these couples could leave unhappy marriages, move on and remarry.
Two women in Perth became the first same-sex couple to divorce under Australia’s new marriage law.
In a similar situation to the Queensland women with a Canadian marriage, this pair had gotten married in a European country where marriage equality was legal but where they were not residents.
They had been unable to divorce in Australia and unable to divorce in Europe.
The new legislation turned this around, allowing this Perth couple and all other same-sex couples the same freedom to marry and divorce as any opposite-sex couple.
How Common Is Gay Divorce
As marriage equality is only very recent in Australia, statistics are unavailable as to how often same-sex couples get divorced.
Statistics based on civil unions in the ACT show that the rate of same-sex break-ups is much lower than that of other couples.
From 2008 to 2014, 799 civil unions were performed in the ACT, with just nine being terminated – a 1.1 per cent failure rate.
In the same period, there were 8711 marriages and 6965 divorces.
However, it is hard to draw a comparison between same-sex and opposite-sex marriages as the opposite-sex divorce numbers take into account couples that were married several years or decades ago.
In other countries where marriage equality has been legalised, the divorce rates for same-sex couples sit at around 1 or 2 per cent, far lower than the divorce rate for opposite-sex couples.
Gay divorce in England is far more likely to be between two women than two men.
The United Kingdom legalised marriage equality in 2013, with the legislation first coming into effect in March 2014.
The divorce rate between UK same-sex couples has increased quite dramatically.
In 2015 there were 22 same-sex divorces. In 2016 there were 112.
In Belgium, the divorce rate for same-sex marriages is about 2 per cent.
In Denmark, the divorce rate for female couples is almost double the divorce rate for men.