Same Sex Marriage Australia – What Changes?

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So the results are in and 61.6% of Australia have voted in favour of permitting same sex couples to legally marry.  We all know that when the law passes it will mean that same sex couples have the option to go through the ceremony and have their relationship lawfully recognised, but what changes will this really make in regard to separation and divorce?

Obviously it all depends on what the end result law actually is however based upon the current laws in place…. The answer is …Not much.

Under the Family Law Act 1975 there are currently 2 different recognised relationships being Marriages and Defacto Relationships. Marriages currently can only be between a man and woman whereas Defacto Relationships can be between a man and woman or same sex relationships. 

There are minor differences to how the Family Court currently deal with marriages v DeFacto relationships. In essence, however, the court still use the same rules to assess the division of assets in the event of a separation.

Despite the issues surrounding religious freedoms which may alter the framework surrounding same sex marriage, the fundamental change to the law will be that the definition of marriage will be changed to include same sex relationships.

If we assume that no other major changes will occur then a same sex marriage will have to comply with the same requirements for current marriages. If any same sex couple wish to get married and subsequently separate then this is the main differences to the rules surrounding DeFacto relationships:

  1. In order to obtain a divorce (which simply means that a person can remarry.  It does not include a division of assets) to dissolve a same sex marriage the parties will need to be separated for a minimum of 1 year and 1 day before they can even apply to the court.  There is no maximum time limit in order to apply for a divorce. In theory, someone could apply for a divorce 50 years after they have separated.  This is different to Defacto relationships where there is no formal requirement to dissolve a relationship. Ie. It can be as simple as one party saying “It is over”.

  2. The time limits in order to finalise the division of assets between parties to a relationship are different for marriages and Defacto relationships.  In De Facto relationships the parties MUST have either entered into a formal order to divide the assets of the parties or commenced an Application in court to divide the assets of the parties BEFORE the parties have been separated for 2 years.  Once the parties are separated for more than 2 years the parties are legally prevented from seeking a formal division of their assets without formal consent of the court.  Formal consent is never guaranteed and is a costly exercise.

  3. The time limit for a marriage is very different to Defacto relationships.  The time limit for a marriage only commences once a certificate of divorce has been issued by the court.  An asset division can occur at any time up to 1 year after a divorce certificate has been issued by the court.  This means that if a party takes their time in applying for a divorce this will directly affect the time limit to do an asset division.  Technically given that a person could wait 50 years to apply for a divorce, this would mean that if no formal asset division has been completed then the other party could bring an application to the court for asset division up to 51 years after the couple has separated.

  4. For the Family Court to have jurisdiction over a Defacto relationship, the parties need to prove to the court that at least ¾ of the relationship occurred within a relevant jurisdiction.  If the relationship did not take place within the Family Court jurisdictional areas then the Family Court cannot deal with the matter and it will need to be dealt with in the relevant state courts.

  5. In order for the family court to have jurisdiction to determine a marital separation the court simply needs to be satisfied that the parties are present in Australia at the time that the application is made in Australia.  This means that if the parties were legally married in another country then the parties will be able to apply for a divorce in Australia.

A very important question that will need to be determined by the new law to be passed by parliament is whether same sex couples who live in Australia but married in another country prior to the new law being passed will automatically have their relationship recognised or whether they may have to go through either a registration process or another wedding in order to have the relationship recognised by Australian law. I would assume that the Same Sex Marriage bill will cater for those same sex couples who are already married but we will have to wait and see.

What will not change is how the court determine how to divide up the assets between the parties. The law as it currently stands requires the court to go through a 4 step process in order to assess the contributions and needs of the parties.

Step 1

The first step is to work out exactly what is up for division between the couple. This includes all assets regardless of whether the asset is owned by 1 party exclusively or owned jointly by both parties. It includes ALL assets, not just a property.  This means that it includes such things as houses, furniture, jewellery, motor vehicles, caravans, jet skis, savings, shares, Superannuation etc. All of the assets are added up and then all the debts of the parties are deducted.  The debts again include all debts regardless of who owes the debt. This includes such things as mortgages, personal loans, car loans, tax debts, credit card debt, hecs debts etc. The amount left over from deducting the debts from the assets is known as the net property pool.  This is the value that the court will consider to be up for division between the parties.

Step 2

The second step assesses the financial and non-financial contributions of the parties towards the relationship. The court will assess contributions based upon the length of the relationship.

Financial Contributions are assessed as any assets brought into the relationship, anything earned during the relationship and any gifts or inheritances received during the relationship.

Non-Financial Contributions are assessed as those actions which do not receive a financial remuneration but nevertheless have contributed to the relationship. This is commonly such actions as raising children, cooking, cleaning, mowing and landscaping, house renovations, doing bookwork for a partner’s business etc.

The contributions are assessed on a general basis and a percentage is allocated to the parties.

Step 3

In step 3 is commonly referred to as the Future needs section. The court start with the percentage allocated in step 2 and then make adjustments to the percentages based upon the specific future needs of the parties.  The main issues that the court will consider is such things as who will have the primary care of the children, if either party is suffering from serious health issues that either effect their ability to work or require ongoing treatment, any difference in the ability to earn an income and the parties ability to recover financially from the separation, and any financial resources available to either party. Financial resources are such things as property owned overseas, any interest in a trust etc.

Step 4

In step 4 the court will step back and look at how the assets are being divided and make sure that the division is just and equitable on a holistic basis.  This step becomes very relevant when one party is receiving significant amounts of superannuation while the other party is receiving cash or assets that could be easily sold and converted into cash.  A court will not permit one party to take all the cashable assets while the other party takes Superannuation that cannot accessed for many years.  The reason for this is that both parties need the opportunity to recover financially from the separation which cannot be done unless both have cashable assets available to them.

As you can see, there will not be significant changes for a same sex couple who decide to take the step to change their de facto relationship into a marital relationship. Whichever option is chosen it is important that you know your rights before you decide to separate so that you have a strategy in place in order to make your separation as smooth and painless as possible. I always recommend that you receive advice from someone who has a clear understanding of family law. 

If you think you may need more advice before determining which way to take your relationship, contact Queensland Law Practice.  We make it our goal to always have lawyers available to provide you with the legal advice that you need.

Same Sex Marriage Australia
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Same Sex Marriage Australia
Same Sex Marriage Australia - Will moving towards marriage equality affect you? We have a look ahead at what impact this might have on all Australians surrounding divorce and separation. If you need legal advice to help determine which way to take your relationship, contact us at Queensland Law Practice.
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Queensland Law Practice
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