The legal definition of marriage in the Marriage Act 1961 has been changed from being a “union of a man and a woman” to a “union of two people”.This change means that marriages between same sex couples previously recognised outside of Australia are now recognised in Australia. It can be complicated if the ‘married’ couple have separated prior to the enactment of the legislation.

Previously, many same sex couples were not able to get divorced in the country they were married as they did not fulfil the requirements (ie not a habitual resident to that country) and these people are now married in Australia despite having separated, in some cases many years ago.

Family law considerations

  1. Same sex couples falling within this category will need to obtain a divorce in Australia even though they may have separated and had a formal property settlement. 
  2. For same sex couples that have not had a property settlement, the limitation period is considered to be one year from the date of divorce leaving them susceptible to proceedings being initiated.

Estates considerations

  1. If a person falling within this category dies intestate and they do not have children then the spouse becomes entitled to their estate even though they had done everything they could (at the time) to finalise the relationship, including a final property settlement.

If you were married overseas to your same sex partner and have separated prior to the enactment of the legislation, you should seek competent legal advice in respect of the above as soon as possible. Please contact either the Family Law Team or the Wills and Estates Team at Hansons Lawyers.