Gay Divorce in Australia
Since achieving marriage equality, Australian same-sex couples can marry and divorce as they wish.
Same-sex marriage is recognised in 26 countries around the world.
The right to marry and divorce someone regardless of sex or gender was a long time coming in Australia.
How do I get a divorce if I am gay?
Is there anything that makes a divorce between two people of the same sex different from a divorce between people of the opposite sex?
Generally, there is no difference in the process for gay couples to get a divorce than any other couple.
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
Requirements for a divorce between same-sex couples
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.
One or both of the parties must also be eligible to apply for divorce in Australia by proving that 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), are an Australian citizen by grant of Australian citizenship (with citizenship certificate as proof), or have been living in Australia for at least the past 12 months and intend to continue living in Australia
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.
The End Of Legal Limbo
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 can finally now get married.
It was also a relief for already married same-sex couples who had been previously unable to divorce.
Two women in Perth became the first same-sex couple to divorce under Australia’s new marriage law.
Similar 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 consider 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.
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.