Marriage equality in australia - the facts - the law
From 9 December 2017, sex or gender no longer affects the right to marry under Australian law and same-sex marriage became legal in Australia.
The Marriage Amendment (Definition and Religious Freedoms) Act 2017 commenced on 9 December 2017. This Act amended the Marriage Act 1961 to redefine marriage as 'the union of 2 people to the exclusion of all others, voluntarily entered into for life'.
The conditions for a valid marriage have not changed. Under Australian law, a couple must wait at least one month to marry after giving an authorised celebrant a completed Notice of Intended Marriage form. In certain circumstances, a couple can seek permission from a prescribed authority to marry earlier.
Ministers of religion
Ministers of religion can continue to exercise their religious beliefs to impose additional conditions for a marriage or to refuse to solemnise a marriage. This is the case for all ministers of religion, regardless of whether or not their religious organisation is proclaimed as a recognised denomination under the Marriage Act.
Ministers of religion can also continue to use a form or ceremony of marriage recognised as sufficient by their religious organisation.
From 9 December 2017, all marriage celebrants (including religious marriage celebrants) are required to state the new legal definition of marriage as part of a marriage ceremony.
The Marriage Amendment (Definition and Religious Freedoms) Act 2017 created a new subcategory of marriage celebrants called 'religious marriage celebrants'. All marriage celebrants who are a religious marriage celebrant are able to exercise their religious beliefs to refuse to solemnise a marriage.
Religious marriage celebrants are required to comply with existing requirements imposed on all marriage celebrants. These include paying the annual celebrant registration charge, undertaking ongoing professional development activities and complying with the Code of Practice for marriage celebrants.
Marriage celebrants registered on or before 9 December 2017, who are also a minister of religion, automatically became religious marriage celebrants.
Marriage celebrants who were registered on or before 9 December 2017, who are not a minister of religion, had until 9 March 2018 to choose to become a religious marriage celebrant, to make clear on the register and in their advertising that they hold religious beliefs.
Current and future applicants for registration as a marriage celebrant may only elect to be identified as a religious marriage celebrant if they are a minister of religion.
Foreign same-sex marriages
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.
Family law and same-sex divorce in australia and overseas
Same-sex couples whose marriages are recognised can access Australia's family law system (including divorce) regardless of when the marriage was solemnised. The divorces of same-sex couples who divorced overseas before 9 December 2017 are also recognised in Australia.
Same-sex couples who divorce overseas on or after 9 December 2017 will have their divorce recognised in Australia in the same circumstances as any other married couple. More information is available on the Federal Circuit Court website.
All same-sex married couples (including those who married overseas before 9 December 2017) are, from 9 December 2017, married couples for the purposes of family law. This may have some implications for same-sex couples who were married overseas and who had pending family law proceedings on 9 December 2017, who are parties to a financial agreement made before 9 December 2017 or who were benefiting from a maintenance order from a previous relationship. More information is available in the following fact sheet.
Access to Australia's divorce system
From 9 December 2017, access to Australia's divorce regime will not be determined by the gender of the parties to the marriage. Same-sex married couples (including those who married overseas prior to the commencement of the reforms) will be treated the same as other married couples and will be able to divorce under Australian law if they meet the other requirements for divorce under the Family Law Act 1975.
Under the Family Law Act there is a single ground for divorce: irretrievable breakdown of marriage. To meet this condition, a court needs to be satisfied that the parties to the marriage have lived separately and apart for at least 12 months prior to the application for divorce being filed and that there is no reasonable likelihood of reconciliation between the parties. It is intended that, when calculating the 12 month period, couples in a pre commencement same-sex marriage will be able to include periods before 9 December 2017, provided they were married at the time and there has been no resumption of cohabitation longer than 3 months.
If a pre commencement same sex married couple currently has proceedings before the family law courts in the de facto jurisdiction, those proceedings will continue as if the originating application for the proceedings was an application for proceedings between a married couple. Anything validly done for the purposes of proceedings before 9 December 2017 will continue to be valid for the proceedings and will be treated as if it was done under the provisions of the Family Law Act that relate to married couples.
The same applies to couples from Western Australia, however, proceedings commenced in Western Australia will move from the State de facto jurisdiction of the Family Court Act 1997 (WA) to the Commonwealth matrimonial jurisdiction of the Family Law Act. In most cases, proceedings can continue to be heard in the same court. However, if the case is on appeal to the Supreme Court of Western Australia, the court may decide to transfer the proceedings to the Full Court of the Family Court. The Supreme Court may make this decision either on its own motion or you may file an application requesting it do so. If the Supreme Court does not choose to transfer your proceedings, it may continue to hear the proceedings.
The state provisions under the Family Court Act 1997 (WA) relating to de facto couples and the Commonwealth de facto and matrimonial provisions under the Family Law Act, are similar but not identical. The biggest difference is that under the Commonwealth Family Law Act the Court can split superannuation payments and interests as part of a property settlement.
Binding Financial Agreements
If a pre commencement same sex marriage couple have made a binding financial agreement, either under the Commonwealth or Western Australian law applicable to de facto couples, the agreement will continue to be valid and binding. However, from 9 December 2017, the agreement will be treated as an agreement made under the provisions in the Family Law Act that relate to binding financial agreements between married couples.
From 9 December 2017, the agreement will be interpreted as an agreement made under the provisions relating to agreements between married couples as if any 'necessary changes' had been made. These 'necessary changes' are only changes that would ensure the agreement would continue to operate on the terms originally agreed but as an agreement between a married couple. 'Necessary changes' is not intended to make any substantive changes to the agreement.
If a party to a pre commencement same sex marriage has previously had a maintenance order made in their favour, that agreement will cease to be in effect from 9 December 2017. Generally a maintenance agreement in a person's favour will cease when that person gets married; however because same sex marriages were not previously recognised in Australia, they did not previously cause maintenance agreements to cease.
The agreements will cease from 9 December 2017, instead of the date that the pre commencement same sex marriage was solemnised, to avoid imposing retrospective obligations to pay back.
Source- Australian Government- Attorney General- 2019