9 December 2017 was a historic day for Australian Family Law: same-sex marriage was legalised in Australia through the passing of the Marriage Amendment (Definition and Religious Freedoms) Act 2017.
Whilst many same-sex couples across Australia are busily planning their weddings under the new legislation, one Perth couple is set to become the first same-sex pair to divorce under the new laws.
The First Gay Divorce In Australia
A Perth woman and her same-sex long-term partner were married in 2015 at the local consulate of a European country where same-sex marriage was legal.
The couple later separated and discovered that Australian marriage laws did not permit them to get divorced.
This is because, until recently, same-sex marriages were not recognised in Australia.
Thus, without a legal marriage, the pair could not divorce.
This difficulty for Australian same-sex couples who had married overseas and later wanted to divorce their partner was critiqued by the United Nations as a violation of international human rights obligations.
A previous case involved an Australian woman who had married her ex-spouse in Canada in 2004 but was unable to apply for a divorce.
As she had not lived in Canada for a year, she could not be legally divorced in Canada.
Furthermore, she could not be subject to divorce proceedings in Australia as same-sex marriage was not, until recently, legalised and thus recognised.
When couples decided to split, they found they couldn’t get a divorce in either country: the country in which the marriage was consolidated wouldn’t divorce them because they were not residents and Australia previously did not recognize same-sex marriage.
This effectively blocked them from enjoying the rights of a married couple.
Also read: What Happens to Citizenship After Divorce in Australia?
The New Legislation – Are gay marriages in other countries recognised in Australia?
After 9 December 2017, the new marriage legislation came into effect, meaning that couples who married overseas in countries where same-sex marriage was legal were also immediately legally recognised in Australia.
This means couples who had their unions solemnised overseas are now recognised, under Australian law, as legally married and thus eligible for divorce.
The new legislation will aid many couples who are in the same situation as the Perth same-sex couple, who are separated and wish to divorce but previously could not.
This has positive effects on the LGBTI community, as those trapped in unhappy marriages can now apply for a divorce from their partner.
They have been released from the ‘legal limbo’ and are free to re-marry and move on with their lives.
Seek guidance from our same-sex divorce lawyers today to navigate your legal journey with expertise and support tailored to your unique situation.
Common Misconceptions About Same-Sex Divorce (and Why They’re Wrong)
Let’s tackle these myths head-on:
Myth 1: Same-sex divorce is more complicated than heterosexual divorce.
Fact: This simply isn’t true. The Family Law Act 1975 applies equally to all marriages in Australia, regardless of whether the couple is same-sex or heterosexual.
The same legal principles guide property division, spousal maintenance (alimony), and child custody arrangements. While each relationship is unique, the legal process itself is consistent.
Myth 2: Same-sex couples face discrimination in family court.
Fact: Australian family courts are bound by the principles of fairness and non-discrimination. While personal biases might exist anywhere, the law itself doesn’t differentiate based on sexual orientation.
Judges are obligated to make decisions based on the best interests of the child (if applicable) and a just division of property, regardless of the couple’s gender or sexual identity.
Myth 3: Same-sex couples cannot get spousal support or property division.
Fact: Absolutely false. Same-sex couples have the same rights as any married couple when it comes to spousal maintenance and property division.
The court considers factors like the length of the relationship, financial contributions, future needs, and the care of children when making these decisions.
Myth 4: Children of same-sex couples are disadvantaged in divorce proceedings.
Fact: The well-being of children is the top priority in any family court case.
Judges focus on what’s in the best interests of the child, taking into account their emotional, physical, and developmental needs. The sexual orientation of the parents is not a determining factor in custody or parenting arrangements.
Myth 5: Same-sex divorces are more common/rare than heterosexual divorces.
Fact: While data on same-sex divorce is still relatively new, early indications suggest that the rates are similar to heterosexual couples. It’s important to remember that each relationship is unique, and the reasons for divorce vary widely.
There’s no evidence to suggest that the sexual orientation of a couple inherently makes them more or less likely to divorce.
Myth 6: Religion plays a larger role in same-sex divorce proceedings.
Fact: In Australian family law, decisions are based on secular legal principles, not religious beliefs. While individual values and beliefs are respected, they don’t override the legal framework for gay divorce. The focus remains on the best interests of the child (if applicable) and a fair division of property.
Remember: Knowledge is your best defence against fear and uncertainty. If you’re facing a same-sex divorce, arm yourself with accurate information. Consult with an experienced same-sex divorce lawyer who understands LGBTQIA+ issues better and can guide you through the process with confidence.
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.
