Australia has now (since December 2017) legalised same-sex marriage giving same-sex couples greater access to legal protections for both financial and parenting family law matters. It also means formally married same-sex couples do not need to rely on the family law provisions relating to de-facto relationships.
Under Australian Law, separating de-facto couples have substantially the same rights (and liabilities) as those of married couples with regard to property settlements.
So how does this all come together?
The Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) not only introduced same-sex marriage, but also recognised past same-sex marriages that took place overseas (where, in some countries, same-sex marriage has been legal for many years).
This means there are same-sex couples who are now regarded by the law as having been married many years. Like many heterosexual couples, they may also be in a de-facto relationship if that prior marriage has not been dissolved by divorce.
As past overseas marriages are now recognised, a potential issue with the Australian same-sex marriage legislation is that people who were previously married overseas and have not sought a divorce (as the marriage was previously not recognised in Australia) may not be able to get married under Australian law without first obtaining a divorce.
There is also the possibility that if a person has married in Australia following a (previously) not recognised overseas same-sex marriage they could be in “two” marriages (either both same-sex or one same-sex marriage and one heterosexual marriage). Another possibility is they are in a now recognised marriage and also a de-facto relationship with another partner.
Section 88D(2) of the Marriage Act provides that the second marriage will not be recognised if a person enters into a second valid marriage. This may mean the parties to a “second” marriage will need to rely on family law de-facto provisions instead of marriage provisions. The Marriage Act will not affect a subsequent de-facto relationship.
Care must also be exercised as section 94 of the Marriage Act makes it an offence (bigamy) for a person who is already married to go through a form or ceremony of marriage with any person. There are no such concerns with respect to de-facto relationships.
If you have concerns about the status of your marriage and/or de-facto relationship take advantage of our free initial consultation to seek advice.