Divorce and Same-Sex Relationships

The legalisation of same-sex marriage in Australia means that married gay and lesbian couples have exactly the same rights and obligations as heterosexual couples in terms of family law.

Sometimes, couples experience such significant marital difficulties that they choose to end their legal union and, in due course, apply for a divorce.

However, before the court will consider granting a divorce, a married couple has to prove that there is no reasonable chance of reconciliation. 

The court isn’t concerned about which party may be at fault or who separated from whom.  The only requirement to apply for a divorce is that the applicant has to demonstrate that the marriage has broken down irretrievably. 

If you are considering separating from your partner, you may find this guide to divorce and same-sex marriages helpful.  It is recommended to get legal advice early on – even if the separation is amicable – because a skilled family lawyer will ensure that the process runs as smoothly as possible. A family lawyer will also be able to provide advice on the ramifications of obtaining a divorce as well as timing to make an application.

There are certain conditions that an applicant (which can be one party or both as a joint application) has to meet before an application for divorce can be submitted.  These include:

  • A minimum 12-month separation. This timeframe gives the couple time to consider their decision and to evaluate whether there is any chance of saving their marriage.
  • If the couple is separated and but are living in the same home, affidavits from friends or family members may be required to substantiate the claim of separation.
  • If the couple has been married for two years or less, they will be required to attend counselling.

You don’t need your spouse’s consent to file a divorce application.  If the application is not made by both parties, then proof of service of the document on the other party has to be provided to the Family Court. There are particular requirements for this; further information is available on the Family Court website or a family lawyer would be able to guide you through the process.  

What happens next?

Once the court has evaluated the documents and is satisfied that due process has been followed, it will set a date for a hearing.   The Hearing is short and it is not always necessary for the parties or their lawyers to actually attend.    The court is only concerned with issuing a divorce order at the hearing and does not deal with property settlement, parenting arrangements, child support or any other issue that may have arisen as a result of the separation.

However, there are some situations when parties are required to attend the hearing.  These include if there are children under 18 years of age and a sole application was made.  The court will need to be satisfied that about the living arrangements for any children under the age of 18 prior to granting a divorce.

The divorce will only be finalised a month and a day after the hearing.

Here are some FAQs relating to divorce and same-sex relationships.  

Are there any differences between same-sex and heterosexual marriages?

The simple answer is NO.   The amended Marriage Act no longer specifies gender and only makes reference to the union between two people.

If I married my same-sex partner overseas, can I get divorced in Australia?

The answer is YES.  Prior to the amendments to the Marriage Act, many same-sex couples went overseas to tie the knot.  As from 9th December 2017 when the amendments took effect, all same-sex marriages that had been solemnised in other countries were legally recognised and couples could apply for a divorce in Australia.

Same-sex marriages that were solemnised in Australia by a diplomatic or consular officer under the law of a foreign country prior to the 2017 amendments are also recognised under the Act and couples can apply for a divorce accordingly.

Can I get divorced if my marriage certificate is not in English?

Before same-sex marriage was legalised in Australia, many same-sex couples chose to marry overseas and consequently, their marriage certificates were not in English.  For a divorce to be granted in Australia, a valid marriage certificate has to be provided with the application.  A marriage certificate needs to be readable by the Family Court and so non-English marriage certificates need to be translated and accompanied by an affidavit of the translator. The affidavit needs to state his or her qualifications as a translator as well as a certification that the English translation is an accurate translation of the original.

Will Australia recognise my same-sex divorce if it was granted in another country?

The amended Act will recognise any same-sex divorce that was granted overseas prior to the 2017 amendments as long as the court is satisfied that it meets all validity requirements.

When can I remarry?

Same-sex couples, like their heterosexual counterparts, can only remarry once the divorce order is finalised.  As mentioned earlier, a divorce is considered to be finalised a month and a day after the hearing.

If you have any questions about same-sex relationships and divorce, our professional and empathetic team of family lawyers in Perth are here to assist you.   We have helped many people navigate the often challenging process of ending their marriages in the most efficient way possible to achieve the best outcome. 

For a friendly obligation-free chat with one of our family lawyers, please get in touch with West Family Lawyers or contact us by phoning 08 9380 9111. 

Please note that this article is general in nature and should not be construed as legal advice.

Natalie Dimmock

Natalie has worked in family law for 18 years, with skills and qualifications in law, mediation, psychology, management, and company directorship.

Natalie is equally comfortable at mediation negotiating a settlement and in the Family Court advocating for clients. She has experience in all areas of family law, including child support, financial settlements, and parenting issues. She is part of a small team of trusted family lawyers in Perth practising in the Family Court of Western Australia.

Find out more about Natalie here.

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