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Divorce and separation

Same-sex divorce in Australia

By February 23, 2018October 25th, 2021No Comments

No matter what sex or gender an Australian couple is, they may now legally be married in Australia; and same-sex divorce will now become more common.  Last December, the Marriage Act 1961 was amended by the Marriage Amendment (Definition and Religious Freedoms) Act 2017, with marriage having now been redefined as “the union of two people to the exclusion of all others, voluntarily entered into for life”.

And with marriage equality comes divorce equality.  Same-sex couples whose marriages are recognised now have the same rights as heterosexual couples to access the divorce system in this country. Divorce will be dealt with by the Federal Circuit Court of Australia, under Part VI of the Family Law Act 1975.

The Family Law Act 1975 had already covered LGBTI couples as well as heterosexual couples in respect of issues like separation of children and property. In other words, if you are separating from a same-sex relationship, you are entitled to seek property and financial settlements in the same court through the same processes as people in a heterosexual relationship.  Australian laws also allow a same-sex couple to apply to the Child Support Agency for child support agreements.

But the changes to the marriage laws have been described as resolving a ‘legal limbo’ for same-sex couples who had married overseas and wished to get divorced.  In the past, same-sex couples who had wed overseas had found that Australian laws made it difficult to divorce.

For many same-sex couples in this situation, legally divorcing was problematic because they did not meet residence or domicile prerequisites in the foreign country in which they had wed.  Now, it is also possible to be legally divorced as a same-sex couple in Australia, and we have already witnessed the first Australian same-sex divorce in December, when a Perth same-sex couple who had married overseas took advantage of the newly minted laws to become legally divorced here.

The courts have advised that at this stage, Applications for Divorce (same sex couples) are unable to be completed online. More information can be obtained from the courts’ National Enquiry Centre.

If you need advice regarding a same-sex divorce or other family law matter, please contact Canberra family lawyer Cristina Huesch or one of our experienced solicitors here at Alliance Family Law on (02) 6223 2400 for a free, no obligation first conference.

Read more about our services in relation to same-sex separation here.

You might also like to read our blog on same-sex family law issues here.

And you can also read the Government’s factsheets on marriage equality and same-sex divorce in Australia for more information.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance.


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