Article Category - Family Law Wills & Estates Workplace Change 08 December 2017

On 7 December 2017, the Marriage Amendment (Definition and Religious Freedoms) Bill 2017 was passed through parliament and on 8 December 2017 it received the Royal Assent from the Governor General.

This legislation provides for a number of changes to the Marriage Act but what is most significance is the change of the definition of marriage from “the union of a man and a woman” to “a union of 2 people”. The other requirements for a legally valid marriage remain the same. There are further amendments to the Act to ensure that the Act is now gender neutral.

Of note the Marriage Act also provides religious ministers with the ability to refuse to solemnise a same-sex marriage when same sex marriage does not conform to their beliefs.

So when can same sex couples get married? Same sex couples are eligible to file their Notice of Intention to Marry forms tomorrow and one month later they will be able to marry. However, those same sex couples who married overseas will have their marriages recognised here in Australia as of tomorrow. 

Prior to this change and since 2009, same sex couples were only recognised as de facto couples. Although de facto couples are provided similar rights under the Family Law Act, they had to overcome obstacles to prove that they intended for their relationship to be legally recognised and that they are in a de facto relationship. To receive such recognition, their relationship would be subject to the following considerations as defined in the Family Law Act:

  1. the duration of the relationship;
  2. the nature and extent of their common residence;
  3. whether a sexual relationship exists;
  4. the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
  5. the ownership, use and acquisition of their property;
  6. the degree of mutual commitment to a shared life;
  7. whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
  8. the care and support of children;
  9. the reputation and public aspects of the relationship.

However, married couples do not have to prove their relationship is one of legal standing. Marriage automatically provides a couple with a legally recognised union.

Lauren Ryan | Family Law Solicitor