Marriage in Australia prior to 2004 was covered by the Marriage Act 1961 (Cth) which defined marriage as a union between two people. The law was amended in 2004 to narrow the definition where marriage was between a man and a woman. Same-sex de factos received further clarification and recognition via the same-sex law reform package passed through Parliament in November 2008.
On 9 December 2017 The Marriage Amendment (Definition and Religious Freedoms) Act 2017 legalised same-sex marriage in Australia by amending the Marriage Act 1961. This legalised same-sex marriage after an unprecedented national postal vote survey of the Australian people. Between 2004 and 2017 there had been 22 unsuccessful attempts in Federal Parliament to legalise same-sex marriage. This was therefore, a landmark decision as it redefined marriage. What does this mean in simple terms – under Australian law, the right to marry is no longer determined by sex or gender.
Same-sex couples married in either Australia or overseas, will be recognized as married for the purposes of the Family Law Act 1975 (Cth) and treated equally to other married couples.
The 2017 laws mean same-sex couples and their families are now able to receive entitlements and benefits previously not available to them including (but not limited to):
- couples may divorce under Australia law if they meet the relevant requirements for divorce;
- partners can be entitled to concession card benefits if eligible;
- bereavement benefits paid if a partner dies;
- exemption of the family home from the assets test when one partner enters nursing home care and the other partner continues to reside there;
- recognition as independent for Youth Allowance if in a same-sex relationship for over 12 months;
- lesbian relationships recognised as a qualifying relationship for Widow Allowance;
- partner recognised as a war widow and entitled to a widower’s pension;
- access to the Child Support Scheme;
- access to the Pharmaceutical Benefits Scheme and Medicare safety nets as a family;
- private sector superannuation trustees to make same-sex couples and their children eligible for reversionary benefits;
- Binding Financial Agreements entered into prior to the changes, will still be binding and, upon marriage, treated as agreements between a married couple;
- If a party to a pre-commencement same-sex marriage had a Maintenance Order made in their favour, that agreement will cease to be in effect from 9 December 2017;
- tax concessions will be available and many more.
What’s the difference between de-facto and married?
De facto – According to the Family Law Act you are in a de facto relationship with another person if you are not legally married to each other, you are not related by family and you have a relationship as a couple living together on a genuine domestic basis.
Married – According to the Marriage Amendment (Definition and Religious Freedoms) Act 2017 marriage is the union of two people to the exclusion of all others, voluntarily entered into for life.
You can therefore be in a same-sex de facto relationship and same-sex married relationship. However, the laws are slightly different
Married overseas? Not a problem.
From 9 December 2017, the Marriage Act recognises existing and future same-sex marriages solemnised overseas under the law of a foreign country. Same-sex marriages solemnised in Australia by a diplomatic or consular officer under the law of a foreign country before 9 December 2017 are also recognised. A couple whose foreign same-sex marriage is recognised in Australia cannot marry each other again in Australia, unless there is doubt as to the validity of the foreign marriage. It is, however, possible for couples to hold another type of ceremony, such as a confirmation of vows or a recommitment ceremony.
Sharon Payne Family Lawyers specialise in all areas of family law, including de facto relationships, same-sex relationships, property, parenting and divorce. Should you have any enquires, or would like further advice, please do not hesitate to contact a member of our team on Ph: 8626 2670 who will be more than happy to assist.
Please note – Laws and regulations in Western Australia are slightly different.
Links of interest