What Are Same-Sex Divorce Proceedings in Australia?

In 2017, Australia became the 26th country to legalise same-sex marriage, with the passing of the Marriage Amendment (Definition and Religious Freedoms) Act 2017 through Australian parliament.

This amendment revised the Marriage Act 1961 (Cth) by redefining marriage as:

“The union of two people to the exclusion of all others, voluntarily entered into for life.”

This means that in Australia, same-sex couples currently have the same right to marry as heterosexual couples, and to access the same resulting legal benefits. However, marriage is sometimes accompanied by separation, and in Australia almost 1 in 3 marriages result in divorce.

If you are considering a same-sex divorce, or entering a same-sex marriage, you might be wondering what potential divorce proceedings could look like for you.

Here, we answer some common questions about same-sex divorce proceedings in Australia.

Is There a Difference Between Heterosexual Divorce and Same-Sex Divorce?

As same-sex marriages have been given the same legal status as heterosexual marriages, there are no differences in marriage or divorce proceedings between same-sex and heterosexual marriages.

However, due to the history of marriage laws in Australia, there is one notable area where complications surrounding same-sex divorce or marriage can arise - and this is in cases where an overseas marriage has previously taken place.

Overseas marriages are recognised in Australia if:

  • The marriage is recognised as valid under the law of the country at the time it was entered into.
  • The marriage would have been recognised as valid under Australian law if the marriage had taken place in Australia.

Because of this second stipulation, same-sex marriages which occurred overseas would not have been considered valid in Australia prior to the legalisation of same-sex marriage in 2017.

If you were a same-sex couple who married overseas, but who has since separated, you may not have felt it necessary to officially end that marriage - as your marriage was not legally recognised in Australia.

However, since the legalisation of same-sex marriage, Australia now recognises same-sex marriages which occurred overseas, regardless of whether or not they took place before same-sex marriage was legalised in Australia.

As Australian law states that it is illegal to be in two marriages simultaneously. If you would like to marry a new partner in Australia while still being technically married overseas, you will need to divorce your overseas partner before marrying again.

If your same-sex marriage overseas has now been recognised in Australia and you are still in a relationship with the same person in Australia, you are unable to marry them again in Australia. However, you can hold a recommitment ceremony or confirmation of vows.

What Are The Legal Criteria for Divorce in Australia?

Australia has a ‘no-fault’ divorce system as outlined in the Family Law Act 1975. This means that courts do not consider why the marriage has ended; only that the marriage has broken down irretrievably.

However, in order to legally divorce, you must demonstrate that you and your partner have been separated for a minimum of 12 months before an application can be filed. The reasoning behind this 12-month waiting period is to ensure the parties have had time to properly consider the separation.

It’s worth noting that you do not necessarily need to have been living separately in order to be considered ‘separated’; you just need to be able to demonstrate that you have not been in a relationship.

In order to file for divorce, either you or your spouse must also demonstrate that you:

  • regard Australia as your home and intend to live in Australia indefinitely, or
  • are an Australian citizen by birth, descent or by grant of Australian citizenship, or
  • ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

If these criteria are met, you may begin divorce proceedings.

What is the Application Process?

One party to a relationship can apply for divorce by themselves, called a ‘sole application’, or the couple can make the divorce application together, called a ‘joint application’.

If the application is not co-signed then the sole applicant (or their solicitor) must serve a copy of the document to their partner. The signed application is then submitted to the Federal Circuit Court of Australia, along with the marriage certificate.

If the court is satisfied that the marriage has broken down, they will make the official divorce order.

One difference between the heterosexual and same-sex divorce process is that same-sex couples cannot currently apply for a divorce online. This is expected to change in the future, but the Family Court website encourages same-sex couples to contact the National Enquiry Centre for more information about this process.

How Can a Solicitor Help?

Divorces can turn into complicated proceedings, as considerations will need to be made regarding issues such as:

An experienced solicitor can help ensure that you are making the right decisions, and provide expert opinion as well as an objective overview of your situation.

It’s important not to let your emotions stand between you and your desired legal result. At Pullos, we are experienced in same-sex divorce can help guide you through the divorce process with legal advice to minimise your stress.

We can also help create Parenting Plans or binding financial agreements.

Are You Considering a Same-sex Divorce?

If you are in a same-sex marriage and considering divorce, Pullos Lawyers are here to help you navigate through this emotionally difficult and complex time of your life.

Our team of family lawyers can help you with filing your divorce application, preparing your affidavit and assisting throughout the divorce process.

We can also assist with a range of matters including De Facto & Same Sex Law and Spousal Maintenance. Please get in touch via email, or call us in our Gold Coast office on (07) 5526 3646, or our Brisbane office on (07) 3144 1641.