By Kristoff Lajoie, Kabo Lawyers
No matter where you stand politically, the trend of amendments to many marriage laws internationally are either being extended to include – or otherwise confirmed to already apply to – marriage between partners of the same gender.
The same variation to marriage laws in Australia is likely to be inevitable, however, many Australian same-gender couples are not willing to wait and have already become married overseas.
But once the honeymoon is over and the couple returns to Australia, what if things don’t work out? In circumstances where the parties seek a divorce from a marriage that is not recognised at law, where do the parties stand in terms of their legal rights with respect to divorce, custody and property?
Marriage & de facto laws in Australia
One of the reasons that Australia is slow on same-gender marriage is that the relevant laws (primarily under the Family Law Act) comprehensively cover de facto relationships – that is, relationships that are, for all intents and purposes, marriage-like in all aspects (except that the couple have not entered into an actual marriage contract). This applies equally to opposite and same-gender relationships.
The existence of a de facto relationship between couples is usually obvious, but where it is not, historic case law tells us that factors to determine such, will include:
- Exclusivity of the relationship;
- Cohabitation of the de facto parties;
- Any children that may exist as a result of the relationship;
- Taking of holidays together;
- Joint significant purchases such as properties or investments; and
- Social / public recognition and acknowledgement of the relationship.
In recent court cases, a de facto relationship was found where the couple never lived together and took separate holidays (but had a child together). And conversely, a de facto relationship was determined not to exist where the couple lived together and holidayed together (but had other partners and were not socially considered to be a couple).
Therefore, it some cases, proving that the relationship exists (or existed) may be a hurdle requirement before establishing your rights as a party to that de facto relationship.
While there is an opportunity for the parties to argue whether there is or is not a de facto relationship in a hypothetical courtroom setting, in other circumstances such as medical emergencies, there may not be the luxury of time to prove a de facto relationship (if it is disputed). In contrast, a marriage is evidenced simply by the production of a marriage certificate (and therein lies one example of discrimination).
Ending the marriage / de facto relationship
Perhaps good news for same-gender couples married overseas who are considering divorce – since you are not married, you therefore cannot divorce. Under current laws, you do not need to complete any paperwork or file any documents if the relationship ends. However, it is recommended that you seek legal advice from the country where the marriage took place, and obtain a divorce from that jurisdiction if appropriate.
It is assumed that after Australia legalises same-gender marriage, Australian law will automatically recognise overseas marriages (as it does with most opposite-gender marriages). Therefore, once the laws change here, it would probably not be necessary to “re-marry”. Furthermore, an overseas marriage would almost undoubtedly be prima facie proof of de facto status. For those two reasons, it is not correct to say that there is “no point” in a same-gender couple marrying overseas, even though it is not recognised in Australia.
Recognition of overseas marriage would also mean immediate entitlement to divorce (if couples choose to do so). However, not many people are aware that the only legal benefit of divorce is that it will permit the divorcees to re-marry. A couple who have separated (but are not yet divorced), including de facto couples that have separated, have all the usual rights in pursuing a property settlement or child custody arrangement.
Custody & property
Same-gender de facto couples have access to all the same legal rights in relation to property settlement and child custody matters as if it were a breakdown of a marriage. The couple only need to be separated and agree that the relationship is at an end.
The only difference under family law is that if a married couple obtain a divorce, they then have 12 months form the date of divorce to make a property claim whereas de facto couples have 24 months from the date of separation.
Therefore, persons who have recently exited facto relationships who have subsequently suffered a significant reduction in living standard, or had contributed to the financial standing of their partner at the cost of their own (for example as a home-maker to support a bread-winner) or contributed to joint assets may have a claim enforceable at law for an interest in joint property or property belonging to the former partner, and should seek advice on their rights as early as possible.
Australia has an international reputation for being behind the times when it comes to marriage laws, however, family law rights extend to de facto couples 99% of the way. The limited discrimination that exists should not discourage same-gender couples from exercising their legal rights in the event of a breakdown of a de facto relationship.
Kristoff Lajoie is a senior associate with Kabo Lawyers and manages all matters relating to family law including de facto relationships, divorce, custody and property matters as well as extending to family estate planning, Wills, probate and other matters.
For more information, contact Kristoff Lajoie at Kabo Lawyers on 03 9663 3337 or at [email protected]