Commonwealth Law

Marriage

Generally overseas marriages are recognised in Australia if:

  • The marriages was a valid marriage in the overseas country;
  • It would have been recognised as valid under Australian law if the marriage had taken place in Australia.

However, same sex marriage continues to be prohibited by law in Australia and is unrecognised by Australian federal law.

Back in 2004 Section 5 the Commonwealth Marriage Act of 1961 was specifically amended to include the words “…the union of a man and a woman…” in the definition marriage. This was to prevent Australian Courts giving the Marriage Act a broader interpretation. At the same time amendments were made by the insertion of Section 88EA to that Act, to ensure that overseas marriages were not recognised in Australia.

That means for example, that a same sex couple can (subject to jurisdiction) marry say in the Netherlands, but upon returning home to Australia are only accorded the status of a de facto couple. As a result they simultaneously live their lives juggling the rights which flow from these different relationships in different countries.

While Australia does not as yet recognise same sex marriage, the law has come a long way in recognising the rights of same sex de facto couples. Indeed, the law is almost identical for non-married couples and married couples except for some limited exceptions the most obvious of which is the right to marry (or divorce).

Who is covered?

The relevant law covers not just heterosexual relationships but members from all of the LGBTIQ community.

In defining a defacto relationship, the Family Law Act, which is Australia wide legislation, defines a de facto relationship to be one where:

“a) the persons are not legally married to each other; and

b) the persons are not related by family…; and

c) … they have a relationship as a couple living together on a genuine domestic basis.”

As can be seen the legislation is therefore gender neutral.

Access to Family Court system –

This means that under the Australia-wide Family Court and Federal Circuit Court system, the LGBTIQ community has the same rights as defacto heterosexual couples to obtain children’s orders or property settlement. For a more detailed examination of de facto property law please see De Facto Law .

(Binding) Financial Agreements –

Again under the Family Law Act, same sex couples can choose to enter into (Binding) Financial Agreements either at the beginning of a relationship, during a relationship or at the end of a relationship to settle property, maintenance or other matters with a partner or ex-partner. For further information about (Binding) Financial Agreements please read the (Binding) Financial Agreements page. They are almost identical to the types of agreements that married (or soon-to-be married couples) may enter into.

Discrimination

In the last 20 years or so and in particular since 2008, over 80 pieces of legislation have been passed to remove discrimination against same sex relationships. This includes prohibiting discrimination in areas such as:

  • Age care;
  • Veterans entitlements;
  • Immigration;
  • Citizenship;
  • Child support;
  • Medical safety net;
  • Pharmaceutical benefits scheme safety net;
  • Family assistance;
  • Social security;
  • Superannuation;
  • Taxation.

This means that same sex partners are now treated in the same manner as heterosexual couples. It also means they have the same duties and responsibilities.

Further the Commonwealth Sex Discrimination Act 1984 was significantly amended in 2013 by the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 making discrimination against lesbians, gays, bisexual, transsexual or intersexual individuals on the basis of their sexual orientation, gender identity and intersex status, illegal. If a person believes there has been discrimination on any of these basis that person can lodge a complaint with the Australian Human Rights Commission.

Law in Victoria

Formalities – Registration of same sex relationship –

Same sex de facto couples have been able to register their relationships with the Registry of Births, Deaths and Marriages in Victoria since 2008. This has had the effect of according same sex de facto couples the same rights as their heterosexual counterparts. The act of registration provides conclusive proof of the existence of the relationship and assists in such matters as accessing superannuation death benefits, securing inheritance rights, assisting in medical decision making and in many others.

Overseas Unions –

Since December 2015 Victoria (as well as three other states) has recognised same sex marriage and civil partnerships performed overseas, providing automatic recognition of such unions in their respective state registers.

However, this does not have the effect of according that foreign marriage formal recognition. Marriage remains a federal law matter.

Adoption –

From September 2016 same sex couples in Victoria will be able to jointly adopt.

Children and Access to IVF –

Since the passing of the Assisted Reproductive Treatment Act 2008 single women and lesbian couples have been able to access assisted conception procedures.

The Status of Children Act 1974 in Victoria, was amended to clarify that a non-birth mother in a lesbian relationship is recognised as the other legal parent of any child or children conceived during their relationship. This is also mirrored in Federal legislation under Section 60H(1) of the Family Law Act 1975 which was amended to acknowledge both members of a lesbian couple as the legal parents of any baby born through IVF if the couple were living together when conception occurred.

There are several experienced Family Lawyers at Pearce Webster Dugdales who can help you navigate this complex and ever-evolving area of the law. Please contact us for an obligation-free preliminary discussion.