Same Sex De-Facto Couples & Same Sex Marriage

Under the Family Law Act 1975 (Cth), same sex de facto couples enjoy the same rights as married couples. From property settlement to parenting arrangements, all bases are covered.

However, it’s crucial to understand that the definition of a de facto relationship can vary. Factors like the duration of the relationship, living arrangements, and sexual involvement are considered. The court carefully examines all aspects before determining the de facto status.

If you want to get legally married in Australia you cannot be married to someone else and you cannot marry a parent, guardian, child, grandchild or sibling. You must be 18 or the court can approve a marriage where one person is 16 and the other is 18 and you must understand what marriage means and freely consent to being married. You must give written notice of your intention to marry to your authorised celebrant, within the required time frame.

Section 4AA of the Family Law Act outlines the criteria that the Court looks at:

• The length of your relationship;
• Whether you share a home;
• Whether you have a sexual relationship;
• Your financial arrangements;
• What property you own/use together;
• How committed you seem;
• Whether the de facto relationship is officially registered;
• Care and support arrangements for any children;
• How others view your relationship.

A person can be in a de facto relationship even while legally married or in another de facto relationship. This concept is known as a ‘multiple de facto relationship’.
The children of de facto same sex couples and the law relating to their living arrangements are identical with children from married couples. However, there can be an added layer of complexity with biological and non-biological parents and the involvement of known sperm donors.
Though the law generally treats de facto and married couples equally, there may be subtle differences, especially when it comes to property division. Each case is unique, so if you are in a same sex de facto relationship seek legal advice from a top same sex lawyer to ensure you understand your rights and obligations fully.

Same Sex Marriage

Marriage in Australia has undergone a significant change.

On December 9, 2017, the Marriage Amendment (Definition and Religious Freedoms) Act 2017 came into effect. This act redefined marriage by replacing the outdated reference to ‘a man and a woman’ with the more inclusive term ‘two people.’ As a result, marriage equality is now a reality for same-sex couples. They are finally able to have their loving and committed relationships legally recognised, granting them the same rights as any other married couple.
To legally marry in Australia, there are a few requirements:

1.  You must not already be married to someone else.
2. You cannot marry a close family member such as a parent, grandparent, child, grandchild, brother, or sister.
3. The minimum age to marry is 18, unless special court approval is obtained for individuals aged 16 to 18.
4. You must fully understand the meaning of marriage and genuinely consent to getting married.
5. During the ceremony, specific words must be used.
6. You must provide written notice of your intention to marry to your authorized celebrant within the specified timeframe.

To proceed with a legal marriage, you must complete the Notice of Intended Marriage at least one month prior to the ceremony. Afterwards, your celebrant is responsible for submitting the necessary paperwork to the Registry of Births, Deaths and Marriages in your state or territory within 14 days.

With these changes in place, same sex couples have the opportunity to celebrate their commitment in a legal and meaningful way.

Overseas Same Sex Marriages

If you do want to get married overseas, you should contact the embassy or high commission of the country you wish to marry in for their specific advice. Generally speaking, a foreign country will most likely request from you a Certificate of no Impediment to Marriage (CNI). This Certificate is issued by the Department of Foreign Affairs and Trade (DFAT), however check whether the country requires the CNI from the Australian embassy, or an embassy within their country.

Fortunately, now if you marry overseas, your marriage is automatically recognised in Australia as a marriage, in all states. You don’t register the marriage here. All you need to show is the official marriage certificate you received from the person who married you overseas, as proof of the marriage if required.

An overseas same sex marriage will generally be recognised in Australia if it:

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

If you need advice from a top same sex lawyer in relation to your same sex marriage or same sex family law issues, please contact us on (02) 8379 1892 or email us at info@barkerevans.com.au.

Our Managing Director, Nicole Evans, has specific expertise in same sex family law matters, having authored the book ‘Lesbians & the Law: A Guidebook for Australian Families’, and is regularly interviewed by media and radio shows on legal issues specific to same sex families.

Barker Evans is also the exclusive legal partner for Rainbow Families, assisting the LGBTQI+ community.
To read more about the requirements to marry in Australia go to: Marriage Equality

Each case is unique, so if you are in a same sex de facto relationship seek legal advice from a top same sex lawyer to ensure you understand your rights and obligations fully.

Barker Evans are the best family lawyers in Sydney with leading LGBTQI+ family law experience and a specialist background in same sex parenting and property cases.