News & Insights

The result of the Same Sex Marriage Postal Survey was announced, confirming that nation-wide, 61.6% (or 7,817,247) of those who expressed a view on the question, ‘Should the law be changed to allow same-sex couples to marry’ answered “yes”. Nearly 8 out of 10 eligible Australians (79.5%, or 12,655,234) expressed a view in the Survey.

Presuming the Survey result leads to a Bill passing the Parliament, what is likely to change, legally?

Family Law

The current definition of “Marriage” under the Marriage Act 1961 (Cth) is “a union between a man and a woman voluntarily entered into for life”. That would obviously need to change. The Bill would almost certainly allow ministers of religion (and possibly other people involved in weddings) to be allowed to refuse to participate in same-sex weddings if doing so would conflict with their religious beliefs, without offending Anti-Discrimination laws. Where same-sex marriages have already taken place in countries where same-sex marriage is legal (including New Zealand, Ireland, USA and many others), those marriages would probably be recognised here in Australia. They are not recognised at the moment.

The Family Law Act 1975 (Cth) does not define ‘Marriage’. People who can apply for a Divorce include, “either party to the marriage”. The Family Law Act may not need to be changed at all in regard to Divorce.

Since 1996, the Family Law Courts have had the power to make orders with respect to “ex nuptial” children (as well as children of married and divorced couples) including children of same-sex and heterosexual de facto couples. The Family Law Act may not need to be changed at all in regards to children. Other ‘proof of parentage’ type provisions in the Family Law Act already provide for same-sex parents.

Since 1 March 2009, the Commonwealth has had the power to make property settlement and spousal maintenance orders for de facto couples (as well as married couples), including same-sex and de facto couples.  The provisions for both types of relationships are virtually identical. Same-sex couples can already enter into Financial Agreements. The Family Law Act may not need to be changed at all in regards to Financial Agreements, property settlements or spousal maintenance. If a same-sex couple are married, they will not need to demonstrate that they are a de facto couple living together on a genuine domestic basis (or there is a child, or that they made a significant contribution to the property in dispute).

Wills and Estate Planning

Because marriage can invalidate a Will, same sex couples intending to marry must review their Wills and Estate planning arrangements.

Marriage can invalidate all or part of a Will, unless the Will contemplates the marriage. Divorce can also invalidate part or all of a Will.  Both marriage and divorce can adversely affect existing superannuation nominations, so should be checked.  Other documents such as Powers of Attorney and Appointments of Enduring Guardian are not likely to be automatically revoked because of a marriage or divorce, but will depend upon their own terms. It important to note that each State makes its own laws in these areas, so where assets are located, and which laws apply should be considered.

Family Trusts SMSF’s and other similar arrangements are all likely to have legal definitions of ‘spouse’ in their governing rules. Those documents may need to be amended to accommodate the new law, or be consistent with it, and will need to be checked.

A person who intends to enter a same-sex marriage should ensure that the marriage does not invalidate or adversely affect their existing Estate Planning arrangements.

People in same-sex de facto relationships already had the same rights as married couple to make a claim for their partner’s superannuation death benefit or bring a testator family maintenance claim against their partner’s estate.

The main difficult has been in having to prove they met the law’s requirements of a de-facto relationship. This can be an unnecessarily expensive, burdensome, demeaning and complicated process, compounding the grief caused by having just lost a spouse. By marrying, the argument about whether they were in a de facto relationship is avoided.

For more information or to discuss what the result and any changes to the law may mean legally for your particular circumstances, please contact our Private Clients team.

This article was written by Brendan Herbert, Principal Lawyer – Private Clients.