Same-sex marriage - Will it make a difference to Family Law?

It is no secret that in Australia the postal vote is in progress and that the votes will soon be counted.

If the majority of Australians respond in the positive and same-sex marriage becomes a reality in Australia, what will this mean for Family Law in Australia? What will this mean for same-sex couples in the future if they separate?

We look at the current law and the likely position under any proposed changes to the law.

What is the current situation?

The current definition under the Marriage Act 1961 (Commonwealth) (“the Marriage Act”), defines marriage to be: “a union between a man and a woman voluntarily entered into for life”. This current definition is contained in Section 5 of the Marriage Act. The Commonwealth Government is empowered under the constitution to make laws relating to marriage including in relation to same-sex marriage. This was confirmed by the High Court of Australia in 2013.

If same-sex marriage is to become law in Australia, the key change necessary to the Marriage Act to enable this occur will be redefine marriage in that Act as being a “union of two people to the exclusion of all others, voluntarily entered into for life”. Clearly any proposed law will also have other ancillary provisions, including making adequate provision to ensure that persons such as celebrants and ministers of religion are not compelled to solemnise same-sex marriages where this conflicts with their religious beliefs.

If same-sex marriage is given the green light and is to become law, the proposed Bill of Parliament is also likely to enable same-sex marriages which have been or will be solemnised under the law of a foreign country to be recognised in Australia. The net effect of this will be that couples who have already travelled overseas (such as to New Zealand) in order to be married in the past will be legally recognised in Australia.

In terms of the practical effect on Family Law, we would have to look at the Family Law Act. The references to marriage in the Family Law Act appear not to be gendered or reliant on sexual orientation, but rather to refer to parties to a marriage. For example, Section 44(1A) of the Family Law Act states that: “proceedings under this Act for a Divorce Order … may be instituted by either party to the marriage”.

Accordingly it may not be necessary to make significant changes (if any at all) to the Family Law Act to reflect the anticipated amendments to the Marriage Act as the definition of marriage is already linked to the definition as set out in the Marriage Act.

Will it affect property settlements under the Family Law Act ?

In short, no. The provisions relating to the spousal maintenance and property division between married spouses (Section 79 and 75(2)) already have equivalent clauses for defacto couples whether heterosexual or same-sex (Section 90SF3, Section 90SM). There is no significant or material difference or distinction between the two regimes of property settlement save for minor differences in wording depending on whether the couple were married or in a defacto relationship. Accordingly same-sex marriage would not in any way alter property settlements under the Family Law Act. It would merely give same-sex couples the ability to decide whether or not they were to be recognised as married or if they wish to remain in a defacto relationship.

In practical terms, separated defacto couples do have to prove certain threshold matters in order to make an application for property settlement (for a Court to have jurisdiction). They need to provide a geographical link to referring state or territory jurisdiction, and establish that the length of a relationship was at least 2 years or that there is a child of the marriage or significant contributions have been made if the period of the relationship was less than two years.

On occasion, there may be a dispute as to whether a defacto relationship existed if the other party disputes it. It may then be necessary to have a preliminary hearing dedicated to the question of whether there was a defacto relationship in existence under the Act prior to the Court being able to decide on property division. So in future married same-sex couples who separate may have fewer hurdles to overcome when they issue an application for property settlement, compared with their position under the present law.

What about parenting matters under the Family Law Act ?

Parenting matters are not dependent upon a parent’s status as married – indeed even non-parents can apply for parenting matters – so this aspect will essentially be unaffected in practical terms.

Further, there are already sections in the Act providing for presumptions of parentage in favour of same sex couples where they have used a recognised fertility clinic to assist them to become parents. There are also presumptions in favour of parentage for children born to married parties.

The law and the considerations of what is in a child’s best interests in terms of the allocation of parental (decision-making) responsibility and parenting time arrangements will not be altered by whether or not same sex couples are legally able to marry or not.

Conclusion

In conclusion, the fundamental change to Family Law for both parties and lawyers will be that same-sex couples will be able to legally able to marry under the laws of Australia (and if any prior marriages from other countries where same-sex marriage is already legal are recognised) is that same-sex couples will also have the same rights to be able to apply for a divorce as their heterosexual counter-parts presently do.