Same sex marriage: what changed in the eyes of the law?

This article is sponsored by Access Law Group

Australia is now officially the 26th country to legalise same sex marriage. Same sex couples can now marry, and couples who were previously wed overseas can have their marriage recognised and can divorce in Australia.

What impact has the change had on the rights of people in same sex relationships?

What does the change mean for proving a relationship?

Next of kin 

Complications can arise in the event of the death of a person in a de facto relationship. This can include proving the validity of the relationship so the de facto partner can be listed as the deceased’s spouse on the death certificate.

People in de facto relationships can also encounter difficulties when organising funeral arrangements and the distribution of assets – particularly where there is no binding death nomination in place with the deceased’s superannuation fund - or no valid will. 

Such requirements of proof can add a lot of stress – particularly at times of ill health of one or both parties, or times of trauma. Legislating same sex marriage has made it easier for same sex couples to prove their relationship – particularly when dealing with hospitals and government agencies. Married couples will now be able to use their marriage certificate as proof of the relationship.

Couples where one party is not an Australian citizen

Proving a de facto relationship with a person who was born overseas can be difficult and expensive. Legislating same sex marriage will make government recognition of these unions far easier.

Proving a de facto relationship with a person who was born overseas can be difficult and expensive. Legislating same sex marriage will make government recognition of these unions far easier.

When it comes to immigration, to obtain a partner visa a couple must show that they are either married or have been in a de facto relationship for at least 12 months.

The process of providing evidence to prove a de facto relationship is huge. It can include providing banking statements, evidence of living arrangements and even ‘proof of love’ – diaries, photographs and social media messaging can all be part of this.

Marriage certificates will mean couples where one party is not an Australian citizen will have much less issue with proving their relationship to government agencies. 

What does the change mean for Family Law?

Property Settlement matters

In 2008, a new addition to the Family Law Act gave the court the power to decide property settlement matters involving same sex couples who met the definition of living in a de facto relationship. That means same sex couples have been treated in the same way as heterosexual de facto or married couples when it comes to the division of assets – and this will continue.

Now that same sex marriage is legalised, there are some benefits in the way family law for same sex unions is decided in court. There is typically a two-year time limit on parties in a de facto relationship to bringing a property settlement application to the court. No such time limits apply to married couples (unless a divorce order has been made).

There will now also be a wider scope in matters where a property settlement application can be brought under the Family Law Act by those in a same sex marriage.

Parenting matters

Dale (left) and Jamie Todling (right) have been fostering Maclahy (5) since he was 11-months-old. They are the first same sex [married] couple in Canberra to legally adopt. Photo: Jamila Toderas

Dale (left) and Jamie Todling (right) have been fostering Maclahy (5) since he was 11-months-old. They are the first same sex [married] couple in Canberra to legally adopt. Photo: Jamila Toderas

The legalisation of same sex marriage has little impact on parenting matters. The Family Law Act already covers both married and de facto couples in both same sex and heterosexual relationships in the same way. The focus of the act remains on the best interests of the children involved and protecting these children from harm.

However, there may be some differences in the area of artificially-conceived children through IVF procedures. Married couples in such circumstances are automatically legal parents to the child. De facto couples seeking legal parenthood must prove that a de facto relationship existed at the time of conception. Same sex marriages will not be subjected to this extra layer of scrutiny anymore.  

Divorce

Unfortunately, with marriage comes divorce. As people in same sex relationships prior to the recent amendments to the Marriage Act were unable to marry, they also could not divorce. It’s expected that divorces figures will rise with the introduction of same sex marriage.

Questions? Find out more by calling Access Law Group for a free consultation on (02) 4220 7100.

This article is sponsored by Access Law Group