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Same sex laws - what does this mean for Family Law?


Unless you’ve been living under a rock, you would be aware that late last year, the Marriage Act was amended to change the legal definition of marriage from being a “union of a man and a woman” to a “union of two people”. On the face of it, this seems like a fairly simple change. 

Same sex couples are now able to enjoy the same rights as heterosexual couples, and are able to marry who they choose. However, the amendments to the legislation will also have other impacts for same-sex couples, particularly those who have previously been married overseas. Prior to 9 December 2017, same-sex marriages outside of Australia were not recognised in Australia. Not only were the marriages not recognised, but those people were unable to get divorced.

Other legal impacts of marriage and divorce also did not apply. After 9 December 2017, same-sex couples who had previously been married overseas were automatically regarded as being married under Australian law. From a Family Law perspective, those couples are now able to get divorced. Further, their Family Law financial matters would be dealt with differently. In Western Australia, property settlement matters are largely the same for married and de facto couples. The notable difference is how superannuation is treated. For married couples, superannuation is treated as an asset, and the Family Court can make Orders dividing superannuation interests. This is not the case for de facto couples.

The other primary difference is the time in which an application for property settlement and/or spousal maintenance needs to be brought. For married couples, this time limit is 12 months after a divorce order has taken effect. For de facto couples, the time limit is 2 years after the date of separation. De facto couples often have disagreements about when their relationship commenced and/or ended. This is not the case for marriage and divorce, as these events are immediate and incontrovertible.

The amendments may also have an impact in relation to non-biological children. Where a woman becomes pregnant using IVF, if the woman’s spouse consents to that procedure, they are considered the legal parent of the child. In the event of an unmarried couple, in the same circumstances, it may be necessary to prove to the Court that they were in a de facto relationship at the time.

Marriage and Divorce also have legal impacts from a Wills and Estate Planning perspective. For example, Marriage and/or Divorce revokes a Will, an Enduring Power of Attorney, an Enduring Power of Guardianship, and may revoke a Superannuation Binding Death Benefit Nomination.

For more information on how these changes may affect you and your relationship, please contact Butlers to speak with our of our friendly Team.

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Monday, 16 May 2022