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.
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 whom 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 was unable to 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 rights of a married couple.
The New Legislation
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 meant they 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 for the LGBTI community, as those trapped in unhappy marriages can now apply for a divorce from their partner.
They have now been released from the ‘legal limbo’ and are now free to re-marry and move on with their lives.