Since the implementation of the Marriage Amendment (Definition and Religious Freedoms) Act 2017, factors such as sex and gender no longer affect Australian marriage rights, with same-sex marriage now legal amongst all states and territories. These changes altered the existing Marriage Act 1961, redefining marriage to be ‘the union of two people to the exclusion of all others, voluntarily entered into for life’.
Marriages involving couples of the same-sex are recognised with Australian divorce proceedings, regardless of whether the marriage was solemnised prior to amendments’ effect. A couple within this category whose foreign same-sex marriage is recognised in Australia is unable to marry again in this jurisdiction unless there are questions of the validity of the previous marriage.
However, Same-sex couples are not prevented from holding other ceremonies, such as confirmation of vows or recommitment. This also encompasses same-sex couples who marry and divorce overseas.
A same-sex couple who divorce either in Australia or overseas after 9 December 2017 is recognised within the Australian jurisdiction under the same process and circumstances as all other married couples. Divorce proceedings are governed by the principles of the Family Law Act 1975, which establish “no-fault” divorces. This means the Family Court will not consider the circumstances as to why the marriage ended, rather the reasonable likelihood the parties will not get back together.
Circumstances of Divorce
Like any divorce proceeding in Australia, same-sex couples must have lived separately and apart for at least 12 months and one day. Importantly, it is possible for you and your spouse to be separated whilst living under one roof but requires proof of separation during this time.
If there is a child of the marriage aged under 18 years old, the Court will only grant the divorce if satisfied proper arrangements have been made to accommodate the child’s needs. However, if there are no children of the marriage aged under 18 years, there is no requirement to attend the court hearing of the divorce from either sole or joint applications.