Same Sex Marriage Rights in Australia: How We Compare to the World

With the world re-opening post covid and post lockdowns, thousands of Australians have been flocking to the airports and heading on adventures overseas.

While you may be more concerned with flight delays, safeguarding your health and making sure you don’t lose your passport, it pays to know the laws of the countries you’re travelling to as well.

Australians voted in favour of same-sex marriage in 2017, but laws and social norms in this area vary widely around the globe.

We share what the same sex rights are currently in Australia, and how these compare to the rest of the world in 2022.


Same Sex Marriage Rights in Australia

On 9 December 2017, the Marriage Act 1961 was amended to change the definition of marriage. The Act now defines marriage as 'the union of 2 people to the exclusion of all others, voluntarily entered into for life'.

At the time, Australia was the 26th country to legalise same-sex marriage. As of July 2022, Australia is one of 32 countries that have legalised same-sex marriage.

While same-sex de facto relationships had been recognised for some time, and the legal rights and responsibilities afforded to de facto couples under Australian law generally reflect those of married couples, de facto relationships are only legally recognised when they meet certain criteria. The recognising of same-sex marriage under Australian law also means that same-sex marriages entered overseas are recognised here, and conversely, divorces can be granted.


Countries Where Same-Sex Marriage is Legal (in addition to Australia)

There are many countries where, like Australia, same-sex marriage is legal and recognised.

These countries include Argentina, Austria, Belgium, Brazil, Canada, Chile, Colombia, Costa Rica, Denmark, Ecuador, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, Mexico, the Netherlands, New Zealand, Norway, Portugal, Slovenia, South Africa, Spain, Sweden, Switzerland, Taiwan, the United Kingdom, the United States of America, and Uruguay.


Countries Where Same-Sex Marriage is Not Legal

There are many countries where same-sex marriage is not legal. 69 countries, in fact, have outlawed homosexuality completely.

In some countries, the punishment for same-sex sexual acts is death. The countries where the death penalty is currently in place for homosexuality is Brunei, Iran, Mauritania, Saudi Arabia, Yemen and in northern Nigeria.

An extensive breakdown of the same-sex marriage and LGBTQI+ laws in other countries can be found here.


Same-Sex Marriage Rights - Some Differences

There are other countries that recognise relationships between same-sex couples but not marriages, such as civil unions and domestic partnerships.

While there are many countries that recognise same sex marriage, and same sex unions, this does not automatically mean that they are granted the same rights as heterosexual couples.

In some parts of the world, there are additional restrictions in place for same-sex couples.

In Taiwan, the first jurisdiction in Asia to recognise same-sex marriage, Taiwanese nationals may only marry someone from a country where same-sex marriage is also recognised.

In Mexico, while same-sex marriage is legally recognised throughout the country, some states require you to obtain an amparo from a federal court in order to obtain a marriage licence.


Same-Sex Marriage Adoption

In all jurisdictions in Australia, same-sex couples have been legally able to adopt since April 2018.

In Taiwan, same-sex couples may not adopt, despite a landmark case allowing a same-sex male couple to adopt in Taiwan this year.

Other countries where same-sex rights do not afford you the right to adoption include Switzerland, Costa Rica and Ecuador.


Same-Sex Marriage IVF Rights

In Queensland, Subdivision 2A and s 20(a) of the Status of Children Act 1978 (Qld) recognises female parents of children born through IVF.

This means same-sex couples have the same access to fertility treatment as do different-sex couples. In addition, a single lesbian woman also has the same access to fertility treatment.  This is the same across the country, although laws relating to IVF are regulated at State level.  If the State legislation is viewed as discriminatory based on marital status or sexual preference, then the Sex Discrimination Act 1984 (Cth) applies and will override the State legislation.

The laws worldwide vary greatly when it comes to same-sex access to IVF. Most countries who allow and provide IVF treatments to female same-sex couples are also those countries where same-sex is legal.

This includes most of Europe, with the exception of Germany. Despite allowing same-sex marriage since 2017, they do not allow same-sex couples access to IVF treatment.


Need Help Protecting Your Same-Sex Marriage Rights?

If you do plan on visiting another country as a same-sex couple or identify as an LGBTQ+ person, it is important to educate yourself about the laws and the ways in which your rights may not be recognised in the same way they are in Australia.

If you need help navigating or protecting your same-sex marriage rights here in Australia, or any other LGBTQIA laws, Pullos Lawyers can assist.

LGBTQ+ laws can be very complex, particularly those regarding parentage, surrogacy and assisted reproduction/IVF. We have over 30 years experience in family law, assisting many LGBTQ+ clients to consider and navigate these complex issues, as well as all laws relating to separation and divorce.

To find out where you stand, contact us.